FIRST     REPORT 

OF  THE  ATTORNEY  GENERAL 

OF  THE  UNITED  STATES 


PHILADELPHIA,  1791 


CHILDS  AND  SWAINE 


REPORT 


O  F    T  H  E 


ATTORNEY-GENERAL. 


READ    IN    THE 


HOUSE    OF    REPRESENTATIVES, 


DECEMBER  31,  1790. 


Philadelphia,  December  27,  1790-. 


S  I  R, 


THE  Order  of  the  Houfe  of  Reprefentati'ves^  re(^uiring  me  to  report  on 
the  Judiciary  System  of  the  United  States,  has  prefcrihed  a  tajk  of  no  common 
difficulty, 

1  doubt  whether  anyone  7nan  could  anfwer  for  the  accuracy  offuch  a  work;  and 
tvenfor  more  than  one,  a  greater  portion  of  time  would  be  neceffary^  to  infurepre- 
cijion,  than  the  interval  between  the  lajl  and  prefent  fejjion. 

But  ihefe  are  not  my  only  embarrajfmenis.  I  am  called  upon  to  revife  a  plan  ap*- 
proved  by  legiflative  wifdom  ;  and  although  I  have  examined  it  with  a  deference 
moji  refpe^fid  and  ftncere,  yet  have  I  been  compelled  to  quefiion  the  Jitnefs  offomeof 
its  leading  features. 

Ifubmit,  therefore,  to  the  candor  and  indulgence  of  the  Houfe,  the  enclofed  Report. 
Thefrfi  part  contains  an  enumeration  of  what  I  conceive  to  be  the  principal  defeds. 
Thofe  of  the  fmaller  kind  would  have  been  treated  in  the  fame  form,  but  for  the 
opportunity,  which  a  bill  affords,  to  avoid  too  much  minutenefs  of  comment,  and  to 
exprefs  my  ideas  more  definitely, 

A  bill  is  prepared  in  the fecond  part,  in  which  a  large  Jhare  of  the  former  matter 
is  preferved.  But  the  language  and  arrangement  of  the  judicial  law  have  not  been 
implicitly  purfued  ;  //  being  almofi  impraElicable  to  incorporate  the  propofed  amend- 
ments by  referrences  to  pages  and  lines.  Where  the  changes  or  additions  are  ejfential^ 
I  have  endeavored  tojufiify  them  by  explanatory  remarks. 

After  all,  however,  I  am  perfuaded  that  time  and  pra^ice  can  alone  mature  the 
judicial fyjiem.  If  in  this  attempt  to  put  it  into  the  train  of  improvement,  I  have 
maintained  errors  in  dodrine,  it  is  a  conflation  to  me  to  reflect,  that  my  opinions 
have  nothing  of  authority  in  thenu 

I  have  the  honor.  Sir,  to  be. 

With  the  higheft  refpeB, 

Tour  moJi  obedient fervant, 

^a/mand  tzn^anaolfiri. 
The  Speaker  of  the  Houfe  of  Reprefentatives. 


REPORT 


OF    THE 


ATTORNEY-GENERAL 


TO    THE 


HOUSE    OF     REPRESENTATIVES. 


THE  ATTORNEY-GENERAL,  to  whom  were  referred  by  the  Or<ier  of 
the  House  o/" Representatives,  ^^  fuch  Mitten  relative  tothe  Adminijlra- 
^^  Hon  of  J ufiice  under  the  Authority  of  the  United  States,  as  may  require 
"  to  be  remedied,  andfuch  Proviftons  in  the  refpedive  Cafes,  a:  hcfJoould  deem 
"  advifable*^  in  obedience  thereto  makes  the  following 

REPORT. 

I.  'TPHE  firft  obje^  of  this  duty  is  to  fuggefl:  any  defeds  exilling  in  the 
X     judiciary  fyftem. 

The  Courts  of  the  United  States  demand  an  organization,  of  which  we 
have  no  appofite  example  in  the  hiftory  of  foreign  jurifprudence  ;  and  our 
own  fcheme  has  not  received  the  full  light  of  experience.  The  following 
obfervations  muft  therefore  depend  for  their  chief  fupport,  on  reafoning,  un- 
accompanied by  precedent. 

From  which  of  the  judicial  powers  enumerated  in  the  Conilitution,   the  i  r-    i  r      r 

FL  t_        •    L    r   11  1     J    J      ■  •  1-1  1  1.  Exclufion  of 

itate  courts  maybe  rightrully  excluded,  is  an  enquiry,  to  which  an  early  part  natecouits. 
of  the  judiciary  law  gives  birth. 

The  aggregate  of  thefe  powers  relate — 

1.  To  cafes  arifing  in  law  or  equity  under  the  Conftitution. 

2.  Under  the  laws  of  the  United  States. 

3.  Under  treaties  made,  or  to  be  made,  by  their  authority. 

4.  To  cafes  affecting  ambafladors,  other  public  miniflers,  and  confuls. 

5.  To  cafesof  admiralty  and  maritime  jurifdidion. 

6.  To  controverfies  to  which  the  United  States  fhallbe  a  party. 

7.  To  controverfies  between  a  ftate  and  citizens  of  another  ftate. 

8.  To  controverfies  between  citizens  of  different  ftates. 

9.  To  controverfies  betw  een  citizens  of  the  fame  ftate,  claiming  lands  un- 

der grants  of  different  ftates  :    And, 

10.  To  controverfies  between  a  ftate  or  the  citizens  thereof,  and  foreign 

ftates,  citizens  or  fubjeds. 
Of  thefe  ten  claffes  of  jurifdiction,  fome  arevefted  in  the  federal,  concur- 
rently with  the  ftate  tribunals ;  oth^ers  in  the  federal,  exclufively  of  the  ftate 
tribunals. 

B 


C      4      J 

It  is  not  cxprefsly  forbidden  to  the  flates  to  aflume  the  cognizance  of  any  one 
or  all  of  them.  For  the  judicial  power  of  the  United  States  is  only  to  extend 
to  the  recited  cafes :  And  to  extend  the  authority  of  one  court  to  a  defcription 
of  perfons  or  things,  which  fliould  of  courfe  be  embraced  by  another,  had  no 
fuch  exteniion  been  made,  cannot  of  itfelf  deprive  that  other  of  its  pre-exift- 
ing  rights. 

T\it  nature  however,  offome  of  thefe  fubjeiSls,  fhuts  out  the  jurifdi£lion  of 
the  ftate  courts,  as  fuch,  on  the  vital  principles  of  the  Union. 

I.  The  firft  among  thefe  are  cafes  of  admiralty  and  maritime  jurifdidlion  ; 
terms,  which,  when  thus  applied,  are  nearly  fynonimous.  They  bear  a  tech- 
nical meaning,  well  known  throughout  the  United  States,  and  uniform;  being 
expreffive  ot  courts,  copied  from  the  fame  original.  It  belongs  to  them  to 
decide  all  caufes,  arifing  wholly  on  the  fea,  and  not  within  the  precin£l^  of 
any  county,  and  to  condemn  all  lawful  prizes,  in  time  of  war. 

(<3)  The  open  fea  is  a  great  high-way  to  all  mankind,  who  have  not  furren- 
dered  by  an  acquiefcence  or  a  pofitive  aft,  the  privilege  of  navigating  particu- 
lar parts  of  it.  In  general,  every  nation  ranks  the  cognizance  of  caufes, 
wholly  arifmg  there,  among  the  attributes  of  independence  ;  and  to  none  is  it 
denied,  where  the  litigants,  or  the  litigated  property  is  within  its  territory.  If 
therefore  it  werefuppofed,  that  anyone  of  the  now  United  States  had  never 
entered  into  the  Union,  to  it  would  this  prerogative  have  appertained.  But 
being  a  party  to  the  federal  compaft,  each  ftate  has  refigned  it  to  the  federal 
government.     It  has  been  thus  refigned  ; 

1.  Becaufe  that  government  only,  as  polfefTmg  the  rights  of  remonftrance, 
marque,  reprifal  and  war,  can  proteft  the  citizens  of  the  United  States  from 
hoftihties,  in  their  daily  intercourfe  with  rival  adventurers  on  that  element. 

2.  Becaufe  a  concurrence  of  jurifdiftion  might  either  involve  the  confede- 
racy in  war,  contrary  to  its  will,  or  fubjeft  it  to  a  grievous  reparation  of  lome 
injury. 

3.  Becaufe  the  power  given  to  Congrefs  by  the  Conftitutlon,  to  define  and 
punifh  piracies  and  felonies  on  the  high  feas,  and  offences  againft  the  law  of 
nations,  comprehends  the  whole  of  criminal  fea  law,  and  warrants  that  body 
to  affign  to  the  federal  courts  alone  an  exclufive  jurifdiftion  therein  :  And, 

Laftly.  4.  Becaufe  under  the  foregoing  powers,  and  the  power  of  Congrefs 
to  regulate  commerce,  and  to  make  rules  concerning  captures  on  water,  the 
pure  marine  law,  properly  fo  called,  can  be  difpenfed  by  thofe  courts  only 
which  derive  an  authority  over  it  from  the  United  States. 

(Ji)  For  the  fame  reafon  is  the  cognizance  of  prizes  in  time  of  war  lodged 
in  the  federal  courts  exclufively.  But  it  is  not  pretended  from  hence  that  the 
United  States  are  abfolved  from  the  obligation  of  neutrality. 

(c)  Two  other  denominations  of  cafes  have  been  added  to  the  admiralty 
and  maritime  courts  ;  to  wit — offences  on  water  againft  the  revenue  laws,  and 
claims  for  fpecific  fatisfaftion  on  the  body  of  a  velfcl,  as  for  mariners*  wa- 
ges, &c.  But  neither  of  thefe  is  of  neceffity  appropriated  to  the  admiralty. 
It  is  true  that  a  jurifdiftion  over  the  former  muft  be  deduced  from  Congrefs, 
and  that  they  will  doubtlefs  depofit  it  in  their  own  tribunals  \  and  moft  proba- 
bly in  the  admiralty.  In  the  latter,  the  ftate  legiflatures  may  eftablifh  a  ju- 
rifdiftion reaching  the  veffel  itfelf. 

2.  If  the  United  States,  as  far  as  they  can  be  a  party  defendant,  ihould 
happen  to  be  To,  their  own  courts  can  alone  judge  them.  To  drag  a  confede- 
rate before  the  courts  of  one  of  its  members,  would  reverfe  the  plain  dic- 
tates of  order  ;  hazard  the  mpft  critical  interefts  of  the  union  upon  the  plea- 
fureof  a  fingle  ftate  ;  and  enable  every  individual  ftate  under  the  pretext  of 
a  forenfic  fentence,  to  arrogate  the  general  fovereignty. 

3.  In  like  manner,  as  far  as  a  particular  ftate  can  be  a  party  defendant,  a 
fifter  ftate  cannot  be  her  judge.      Were  the  ftafes  of  America  unconfederated. 


[       5       ] 

they  would  be  as  free  from  mutual  controul  as  other  disjointed  nations.  Nor 
does  the  federal  compacl  narrow  this  exemption  ;  but  confirms  it,  by  efta- 
biifhing  a  common  arbiter  in  the  federal  judiciary,  whofe  conftitutionai  au- 
thority may  adminirter  redrefs. 

It  delerves  however  to  be  remarked  in  this  place,  that  thefe  ideas  are  not 
inconfiltent  with  the  right  of  the  ftates  fepv>rate!y,  or  of  the  United  States 
colledtively,  to  refort  to  the  (late  courts  ii  plaintiff's  ;  nor  yet  with  the  ri^ht 
ot  the  Itates  feparately  to  open  their  own  courts  for  fuits  againfl  themfelves. 

4.  In  difputes  arillng  upon  the  grants  of  land  by  different  flates,  the  con- 
teft  mull  turn  upon  one  of  two  queltions -,  in  which  ,  ftate  the  land  lies;  or 
whether  lands,  confelfedly  within  one  Hate,  may  not,  by  virtue  of  fome  ad, 
be  claimed  by  the  grantee  of  another.  It  would  be  the  extreme  of  prefump- 
tion  for  a  filler  flate  to  affc£l;  a  jurifdidion  in  this  cafe  :  and  more  efp'ecially 
ought  the  granting  and  claiming  Hates  to  keep  aloof  from  the  decifion,  it  being 
the  caufe  of  both. 

5.  If  crimes  and  offences  be  punifhable  by  that  authority  alone,  againft 
which  they  are  committed  ;  thofe  created  by  the  Confticution,  or  by  Con- 
grefs,  refult  to  the  federal  judiciary  only.  If  on  the  other  hand  it  were  allow- 
ed, that  Congreis  might  transfer  the  cognizance  of  thefe  cafes  to  the  flate 
courts,  until  that  transfer  it  cannot  be  theirs. 

6.  Rights  too  created  by  Congrefs,  may  have  a  fpecial  rem.edy  given  to 
ihem  in  the   federal  courts  ;  and  to  them  ought  therefore  to  be  reflrided. 

We  are  then  led  to  conclude,  that  the  judiciary  of  the  United  States  have 
exclufive  jurifdidion  in  the  following  cafes. 

1.  In  thofe  of  flricl  admiralty  and  maritime  jurifdiflion. 

2.  Where  the  United  States  are  a  party  defendant. 

3.  Where  a  particular  (late  is  a  party  defendant. 

4.  Where  lands  are  claimed  under  grants  of  different  flates. 

5.  In  treafon,  as  defcribed  by  the  conflitution,  and  other  crimes  and  of- 

fences created   by  the  laws  of  the  United  States,  but  not  configned 
*o  the  (late  tribunals. 

6.  In  rights  created  by  a  law  of  the  United  States,  and  having  a  fpecial 

remedy  given  to  them  in  the  federal  courts. 
In  all  the  other  cafes,  to  which  the  judicial  power  of  the  United  States  extends^ 
a  concurrent  jurifdidion  is  prefumed  ;  provided  they  be  not  mingled  with 
others  coming  within  any  of  the  fix  foregoing  defcriptions.  By  this  fland- 
ard,  which,  if  found,  may  by  its  adoption  maintain  the  harmony  of  the  federal 
and  flate  judiciaries,  the  Attorney-General  has  tried  the  jurifdidions,  marked 
out  by  law.  But  with  a  reludance  and  diflrufl  of  his  own  judgment,  which 
nothing  lefs  than  a  fenfe  of  duty  could  overcome,  he  begs  leave  to  aflv, 

1.  How  far  the  ftate  courts  ought  to  be  prohibited,  as  they  now  are  from  cj^.^      ^^ 
a  jurifdidion  in  fuits  againd   confuls  or   vice-confuls,  as  fuch,  or  againfl  a 

ftate,  fued  with  its  own  permifTion,  in  its  own  courts,  or  in  fuits  where  a  (late 
is  plaintiff  ?  And, 

2.  Whether  the  reflridions  on  the  (late  courts  ought  not  to  be  increafed,  fo 
as  to  bind  all  the  fix  cafes  above  mentioned  ? 

On  a  farther  profecution  of  the  cafes  acknowledged  to  be  of  concurrent  jurif.  jj    Re-exami- 
didion,  it  appears,  that  a  writ  of  error  may  iffue  from  the  fupreme  court  of  nation  of  ftate 
the  United  States  to  a  final  judgment  or  decree  rendered  in  any  fuit  by  the  ^^^^f^"- 
highefl  flate  court  of  law  or  equity,  in  the  nine  following  cafes :  Sec  25. 

Where  is  drawn  in  queflion, 

1.  The  validity  of^a  treaty  of  the  United  States  ;  ^  and  the  decifi- 

2.  Or  of  a  ftatute  of  the  United  States  ;  >  on    is    againfl 

3.  Or  of  an  authority  exercifed  under  the  United  States :  3  their  validity. 


'         [       6       ] 

Or  where  Is  drawn  in  quedlon, 

1.  The  validity  of  a  Itatute  of  any  ftate  on  the  ground  "\ 

of  being  repugnant  to  the  Conftitution,  treaties, /and  the  decifion 
or  laws  of  the  United  States  ;  >is  in  favor  of  fuch 

2.  Or  of  an  authority  exercifed  under  any  ftate  upon  V  their  validity. 

like  grounds :  j 

Or  where  is  drawn  in  queftion, 

1 .  The  confi:ru£tion  of  any  claufe  of  the'^and  the  decifion  is  againft  the 

Conftitution  of  the  United  States  ;#  title,  right, privilege  or  exemp- 

2.  Or  of  a  treaty  of  the  United  States  ;  V  tion,  fpecially  fet  up,  or  claim- 

3.  Or  of  a  ftatuteoft"he  United  States  ;/^ed  by  either  party  under  fuch 

4.  Or  of  a  commiflion  held  under  the  \  claufe  of  the  faid  Conftitution, 

United  States  :  •  -^treaty,  ftatute,  or  commiflion. 

That  the  avenue  to  the  federal  courts  ought,  in  thefe  inftances,  to  be  un- 
obftrufted  is  manifeft.  But  in  what  ftagc,  and  by  what  form  fFiall  their 
interpofiticn  be  prayed  ?  There  are  perhaps  but  two  modes ;  one  of  which  is 
to  convert  the  fupreme  court  of  the  United  States  into  an  appellate  tribunal 
over  the  fupreme  courts  of  the  feveral  ftates  ;  the  oiher  to  permit  a  removal  by 
certiorari  before  trial. 

The  Attorney-General  will  not  decide  how  far  the  arguments  of  thofe,  who 
do  not  aifent  to  the  firft,  merit  attention.  But  he  is  conftrained  to  lay  them 
before  the  Iloufe. 

It  has  been  conceded,  that  when  the  Conftitution  delegates  to  the  fupreme 
court  "  appellate  jurifdidion^*^  it  ufes  a  very  broad  exprellion  ;  which,  if  un- 
derllood  in  its  literal  latitude,  tolerates  the  firft  expedient.  But  on  the  other 
hand  it  has  been  afferted, 

1.  That  this  phrafe  muft  be  preffed  clofe  to  the  matter  of  the  third  article 
of  the  Conftitution,  which  is  (he  judicial  power  of  the  United  States^  without 
blending  ftate  courts. 

2.  That  this  fpecies  of  conftruclion  is  not  unfrequent ;  nay,  in  another 
part  of  the  article  it  is  drawn  into  adion.  For  without  it,  the  diredion,  that  all 
crimes,  except  in  cafes  of  impeachment,  ftiall  be  tried  by  a  jury,  might  intrude 
farther  into  the  police  of  a  ftate,  than  has  been  c\'er  yet  contended. 

3.  lliat  as  the  ftate  courts  did  not  rely  for  their  concurrent  jurifdidion  up- 
on any  ceftion  in  the  Conftitution,  the  fpecial  provifton,  that  the  fupreme  court 
ftiould  have  or/g^w^/jurifdidtion  in  four  cafes,  was  defigned  to  prevent  the  in- 
ferior courts  of  the  United  States  from  having  the  fole  original  jurifdiftion  in 
thofe  cafes  :  and  that  original  and  appellate  being  correlative  in  their  fignifica- 
tion,  the  Jatter  muft  ailfo  befpeak  fome  relation  between  the  fupreme  and  infe- 
rior courts  of  the  United  States  alone. 

4.  That  in  cafes  of  admiralty  and  maritime  jurifdidon,  and  fome  others, 
with  which  a  ftate  cannot  intermeddle,  the  appellate  jurifdi£lion  muft  operate 
on  the  decrees  of  the  inferior  federal  courts  only  :  and  that  the  interpretation 
r)f  one  paftage  in  the  article,  being  thus  far  clear,  furnifties  a  key  by  which  to 
expound  the  others  :  And, 

5.  That  a  concurrence  of  jurifdidion  fo  ftrongly  implies  coequality,  that 
nothing  ought  to  arraign  it,  except  a  very  explicit  declaration,  or  at  leaft  a  vio- 
lent necefliiy  to  the  contrary. 

But  let  thefe  arguments  be  pafted  over  without  further  notice. 

Does  juftice  intitle  the  plaintiff"  to  the  firft  mode  ?  When  he  indltutes  his 
fult,  he  has  the  choice  of  the  ftate  and  federal  courts.  He  eleds  the  former,and 
to  that  eledion  he  ought  to  adhere. 

Does  juftice  intitle  a  defendant  to  it  ?  Certainly  not ;  Ihould  he  be  free  to 
vithdraw  the  caufe  by  a  certiorari  at  any  time  before  trial,  from  the  ftate 
court.     For  if  with  this  privilege  he  proceeds  without  a  murmur  through  the 


[      7      ] 

whole  length  of  the  ftate  courts,  ought  he  to  catch  a  new  chance  from  the  fede- 
ral courts?  Have  not  both  plaintiff  and  defendant  thus  acquiefcing,  virtually 
chofen  their  own  judges  ? 

Again.  Let  fuppofition  itfelf  be  tortured :  let  the  highefl:  (late  courts,  al- 
though fworn  to  lupport  the  Conftitution,  invalidate  a  treaty,  a  flatute  or 
an  authority  of  the  United  States. 

1.  Such  a  decree  could  not  invalidate  them,  nor  impair  the  right  of  the 
lowed  federal  court  to  ratify  them. 

2.  It  WOUI4  not  difturb  the  tranquility  of  the  United  States.  For  if  even 
aliens  were  the  parties,  the  remonftrances  of  their  prince  might  be  repelled  by 
{hewing  that  they  favored  the  ftate  jurifdidlion,  by  waiving  the  privilege  of 
going  into  the  federal  courts. 

3.  Nor  yet  would  the  honor  of  the  United  States  be  fullied.  For  if  it 
has  not  occurred,  it  may  be  conceived,  that  courts,  whofe  jurifdidion  is  ftrait- 
ened  in  value,  but  whole  decrees  up  to  that  value  are  final,  may  be  refrattory 
againft  a  law,  without  diminifhing  the  real  dignity  of  government.  Judicial 
uniformity  is  furely  a  public  good,  but  its  price  may  be  too  great  if  it  can  be 
purchafed  only  by  cherifhing  a  power,  which  to  fay  no  more,  cannot  be  incon- 
teftibly  proved. 

4.  At  any  rate,  unlefs  a  party  fiiall  forfake  the  ordinary  maxims  of  pru- 
dence, the  hoflility  of  the  fupreme  (late  courts  (if  hoflility  be  polTible)  will  be 
difplayed  but  once.  For  the  remembrance  of  an  adverfe.decifion  or  an,  ad- 
verfe  temper  in  thofe  courts,  will  inevitably  proclaim  the  federal  courts  as  the 
afylum  to  federal  interefts. 

From  thefe  confiderations,  the  fecond  mode  by  certiorari  is  perhaps  eHgi- 
ble.  But  it  may  be  faid,  that  even  this  procefs  argues  fomething  more  than 
a  concurrence  of  jurifdiftion  in  the  federal  courts  ;  and  that  if  it  be  improper 
to  tie  a  defendant  to  a  ftate  court  againft  his  will,  it  is  equally  fo  to  force  a 
plaintiff  to  a  federal  court  againft  his  will.     To  this  let  it  be  anfwered, 

1.  That  the  judicial  power  of  the  United  States  was  eftablifhed  to  prevent 
fuitors  in  certain  cafes  from  being  obliged  to  fubmit  entirely  to  the  ftate 
courts ;  and  that  a  material  objedion  to  the  re-examination  of  a  final  decree, 
is  founded  upon  both  parties,  voluntarily  and  cheerfully  devoting  themfelves 
to  the  ftate  courts :  And 

2.  That  a  concurrent  jurifdidion  would  be  a  heavy  oppreflion  to  a  defen- 
dant, if  he  cannot  depart  from  a  ftate  court,  while  theplaintift'may  arrefthim 
by  a  ftate  or  federal  writ. 

A  third  alteration,  which  the  Attorney-General  cannot  forbear  to  fuggeft,  m,  judges  of 
is,  that  the  judges  of  th€  fupreme  court  ftiall  ceafe  to  be  judges  of  the  circuit  the  fupreme 
courts.  'T.ITflh. 

.         r  judges  ot    ine 

It  is  obvious  that  the  inferior  courts  ought  to  be  diftind  bodies  from  the  fu-  circuit  courts, 
preme  courts.     But  how  far  it  may  confound  thefe  two  fpecies  of  courts,  to 
fuffcr  the  judges  of  the  fupreme  to  hold  feats  on  the  circuit  bench,  he  declines 
the  difcuflion,  and  circumfcribes  his  refledtions  within  the  pale  of  expediency 
only. 

I.  Thofe  who  pronounce  the  law  of  the  land  without  appeal,  ought  to  be 
pre-eminent  in  mofl  endowments  of  the  mind.  Survey  the  fundlions  of  a  judge 
of  the  fupreme  court.  He  muft  be  a  mafter  of  the  common  law  in  all  its  divi- 
fions,  a  chancellor,  a  civilian,  a  federal  jurift,  and  fkilled  in  the  laws  of  each 
ftate.  To  exped  that  in  future  times  this  affemblage  of  talents  will  be  ready, 
without  farther  ftudy,  for  the  national  fervice,  is  to  confide  too  largely  in 
the  public  fortune.  Moft  vacancies  on  the  bench  will  be  fupplicd  by  profef- 
fional  men,  who  perhaps  have  been  too  much  animated  by  the  contentions  of 
the  bar,  deliberately  to  expljore  this  extenfive  range  of  Icience.     In  a  great  mea- 

C 


C       8       ] 

fure  then,  the  fupreme  judges  will  form  themfelves  after  their  nomination. 
But  what  leifure  remains  from  their  itinerant  difpenfation  of  juilice  ?  Sum  up 
all  the  fragments  of  their  time,  hold  their  fatigue  at  naught,  and  let  them  bid 
adieu  to  all  domeftic  concerns,  ftill  the  average  term  of  a  Hfe,  already  advanced, 
will  be  too  (hort  for  any  important  proficiency. 

2.  The  detaching  of  the  judges  to  different  circuits,  defeats  the  benefit  of 
an  nnprejudiced  confultation.  The  delivery  of  a  folemn  opinion  in  court,  com- 
mits them  ;  and  fliould  a  judgment  rendered  by  two,  be  erroneous,  will  they 
meet  their  four  brethren  unbialfed  ?  May  not  human  nature,  thus  trammelled, 
ftruggle  too  long  againft  conviftion  ?  And  how  few  would  ered  a  monument 
to  their  candor,  at  the  expenfe  of  their  reputation  for  firmnefs  and  difcernment  ? 

3.  Jealoufy  among  the  members  of  a  court  is  always  an  evil  ;  and  its  ma- 
lignity would  be  double,  fhould  it  creep  into  the  fupreme  court,  obfcure  the 
difcovery  of  right,  and  weaken  that  refpeft  which  the  public  welfare  feeks  for 
their  decrees.  But  this  cannot  be  affirmed  to  be  beyond  the  compafs  of  events 
to  men  agitated  by  the  conftant  fcanningof  the  judicial  conduft  of  each  other. 

If  this  fhould  not  happen,  there  is  frefh  danger  on  the  other  fide  ;  left  they 
/hould  be  reftrained  by  delicacy  and  mutual  tendernefs,  from  probing  without 
fcruple,  what  had  been  done  in  the  circuit  courts.  A  fchifm  of  fentiment  be- 
fore a  decifion  and  after  a  free  conference,  is  not  efteemed  harfh  ;  but  it  is 
very  painful  to  undertake  to  fatisfy  another,  that  in  a  public  opinion  already 
uttered,  he  has  been  in  the  wrong. 

4.  Situated  as  the  United  States  are,  many  of  the  mofl  weighty  judiciary 
queflions  will  be  perfedly  novel.  Thefe  mufl  be  hurried  off  on  the  circuits, 
where  neceffary  books  are  not  to  be  had  ;  or  relinquifhed  for  argument  before 
the  next  fet  of  judges,  who  on  their  part  may  want  books,  and  a  calmer  feafon 
for  thought.  So  that  a  caufe  may  be  fufpended  until  every  judge  fhall  have 
heard  it. 

5.  To  this  feparation  of  the  fupreme  judges  from  the  circuit  fervice,  fome 
objections  may  be  anticipated. 

It  may  be  urged, 

I.  That  it  will  tend  to  imprefs  the  citizens  of  the  United  States  favorably 
tovi'ards  the  general  government,  fhould  the  mofl  diftinguifhed  judges  vifit 
every  ftate  :   And, 

1.  That  in  one  county,  affizes  are  held  with  applaufe,  by  the  very  men  who 
afterwards  fit  colledively,  to  review  what  may  havobeen  there  tranfacled,  and 
who  are  alfo  confulted  in  the  dernier  refort. 

1.  The  firft  objeftion  is  too  vague.  In  its  extent,  it  impugns  all  fubordi- 
nate  departments  v/hatever  ;  and  ought  therefore  to  be  regarded  no  otherwife, 
than  as  it  may  be  unoppofed  by  inconveniencies.  Let  it  then  be  inquired,  it 
none  of  the  preceding  do  oppofe. 

Again  :  Will  not  the  judges  of  the  circuit  courts  be  adequate  to  their  Na- 
tions ? 

The  fi.iprcme  judges  themfelves  who  ride  the  circuits,  will  (if  indeed  fuch  a 
circumllance  can  be  of  much  avail)  be  foon  graduated  in  the  public  mind,  in 
relation  to  the  circuits  ;  will  foon  be  confidcred  as  circuit  judges,  and  will  not 
be  often  appreciated  as  fupreme  judges.  When  a  difcomfited  party  looks  up 
to  the  highed  tribunal  for  redrefs,  he  is  told  by  the  report  of  the  world  that  in 
it  every  quality  is  centered  neceffary  tojuftice.  But  how  would  his  fanguine 
hopes  be  fruflrated,  if  among  fix  judges,  two  are  moft  probably  to  repeat  their 
former  luifrages,  or  to  vindicate  them  wirh  firenuous  ability  ;  or  if  to  avoid 
this,  the  wifdom  of  a  third  of  the  number  mufl  be  laid  afide  ? 

2.  The  alfize  fcheme  v.ill  not  be  confronted  by  any  impeachment  of  its  me- 
rit ;  on  the  contrary,  its  merit  is  admitted,  although  perhaps  it  cannot  fafely  be 


[      9       ] 

the  ground  workofour  reafoning  on  the  judiciary  of  the  United  States,  until  we 
are  allured  that  we  have  penetrated  all  the  arcana  of  its  operations.  But  there 
is  a  court  of  final  jurifdidtion,  which  by  being  ready  to  corred,  incefiantly  ad- 
monifhes  all  the  fubordinate  courts  to  be  circumfpecl.  Equity  itfelf  too,  being 
in  different  hands  from  the  common  law,  is  watchful  over  every  departure 
from  what  is  right. 

When  the  judges  of  aflize  aflift  with  their  counfels  in  the  lafl  refort,  they 
are  not  authoritative.  Such  of  them  as  are  members  of  the  body,  are  fo  fmall 
in  number,  as  to  be  compelled  to  rely  on  the  flrength  and  folidity  of  their 
judgments  only,  inflead  of  their  influence.  Befides,  the  judges  are  inroHed 
in  diftinct  corps ;  and  this  alone  would  be  a  kind  of  hoftage  for  exertions  in 
behalf  of  truth. 

Where  then  is  the  fimilitude  to  the  fupreme  court  of  the  United  States? 

Should  the  judges  of  the  fupreme  court  become  ftationary,  they  will  be  able  iv.  Rcpom, 
to  execute    reports  of  their  own   decifions,  and    thus    promote  uniformity 
through  the  whole  judiciary  of  the  United  States. 

Reports  may  be  traced  up  to  a  venerable  antiquity.  In  England  they  were 
compofed  for  centuries  by  prothonotaries  of  the  court,  at  the  charges  of  the 
crown  :  And  ever  fmce  the  patronage  of  government  has  retired,  their  utility 
has  been  univerfally  avowed.  In  our  own  country  too,  labors  like  thefe  have 
diftufed  a  knowledge  of  the  laws  of  particular  Itates.  And  how  valuable  in 
point  of  authenticity  and  inftrudion,  mud  reports  be,  from  the  fupreme  court? 

But  thefe  are  not  the  only  advantages: 

They  announce  the  talents  of  the  judges. 

If  the  judge,  whofe  reputation  has  raifed  him  to  oflice,  fhall  be  in  the  habit  of 
delivering  feeble  opinions,  thefe  reports  will  firft  excite  furprife,  and  after- 
wards a  fufpicion,  which  will  terminate  in  a  vigilance  over  his  aftions. 

In  a  word,  when  by  means  of  thefe  reports,  the  fenfe  of  the  fupreme  court  fhall 
be  afcertained  and  followed  in  the  inferior  tribunals,  much  time  and  money  will 
be  laved  to  diffatisfied  fuitors,  who  might  otherwife  appeal. 

A  diverfity  of  opinion  has  prevailed  on  the  forms  and  modes,  to  be  obferved  y  proceedings 
in  caufes  of  equity  and  of  admiralty  and  maritime  jurifdidion  :  Whether  they  of  equity  and 
are  to  be  according^  to  the  mere  civil  law,  unqualified  by  the  ufages  of  iiny  mo-  ^'^™'^i'y  ^c- 

j  ,.  ii«.-i  *  •'  °  ^  cordinor  to  the 

dern  nation,  or  under  limitations  r  civil  law. 

If  the  untempered  feverity  of  the  Roman  law  is  to  predominate,  the  rights  of 
property,  and  of  perfonal  liberty,  are  in  jeopardy:  Without  exhibiting  a  tedious 
lift  of  what  are  termed  the  fubftantial  and  accidental  parts  of  a  civil  caufe, 
let  a  few  of  the  moft  obnoxious  forms  of  the  civil  law  be  feleded. 

1.  In  fcarcely  any  cafe,  unlefs  in  that  of  a  ne-exeat,  is  an  arreft  upon  cita- 
tion or  fubpoena,  at  the  firft  inftitution  of  a  chancery  fuit  known  in  the  United 
States.     In  the  civil  law  it  is  otherwife. 

2.  One  mode  of  executing  a  fentence  is  by  putting  the  plaintiffinto  pof- 
felTion  of  all  the  defendant's  eftate,  in  order  that  he  may  pay  himfelf :  and  the 
fame  may  be  the  punilhment  of  contumacy. 

3.  It  is. true  that  by  pradlice  a  fequelfration  has  grown  ifito  a  chancery-pro- 
cefs  in  the  laft  ftage  of  contempt.  But  by  the  civil  law,  the  property  in  debate 
may  be  wrefted  from  its  polVeiVor,  when  he  has  been  guilty  of  no  contempt, 
and  may  continue  with  the  fequeftrator,  be  the  fuit  depending  for  any  number 
of  years  whatfbever. 

4.  To  what  a  height  of  infult  and  delay  may  not  a  dilatory  exception  to  a 
judge  be  carr' "td? 

5.  The  oaths  have  not  Icfs  fmgularity  in  them. 


[       10       ] 

The  fuppletory  oath  is  given  by  the  judge  to  the  plaintiff  or  defendant  upon 
half  proof  being  already  made;  which  beingjoined  with  the  half  proof  fupplies 
a  fufficient  quantum  of  proof. 

The  decifive  oath  is,  where  one  of  the  litigants  not  being  able  to  prove  his 
accufation,  offers  to  fland  or  fall  by  the  oath  of  his  adverfary  ;  ^nd  the  adverfary 
is  bound  to  accept  it,  or  make  the  fame  propofal  back  again,  under,  the  penalty 
of  condemnation. 

The  oath  of  calumny,  is,  where  the  plaintiff  or  defemlant  is  required  tofwear, 
that  he  believes  himfelf  to  be  engaged  in  a  j.uft  caufe. 

To  thefe  fpecimens,  others  might  be  added,  equally  exceptionable.  But 
as  they  indicate  the  general  fpirit  of  the  civil  law,  in  its  forms  and  modes, 
limitations  of  them  ought  to  be  fearched  for. 

It  cannot  be   denied,  that  the  nation,  whofe  jurifprudence  is  the  fource 

of  our  own,  prefents  the  bed  limitations ;  and  that  they  ought  to  be  adopted, 

until  better  (hall  be  devifed.     And  better  may  certainly  be  prepared  und^ 

the  aufpices  of  Congrefs. 

VI  One  place       Congrefs  evinced  their  anxiety  that  the  adminiftration  of  juftice  fhould  be  as 

foi  holding  the  convenient  as  poflible,  to  the  citizens  of  the  United  States,  when  they  allotted 

cifcilii  couns.    alternate  places  for  the  feffions  of  the  diftritt  and  circuit  courts.     Although  it 

may  be  doubted,  whether  it  would  not  be  more  agreeable  to  the  public  to  be 

fummoned  to  fome  central  fpot,  yet  to  reduce  thefe  places  to  one  in  each  di- 

llrift,  without  cogent  reafons,  might  awaken  difcontent.     But  fuch  a   rifque 

may  be  encountered  with  fafety,  as  it  is  defended  by,  a  fair  predi6lion  of  the 

raifchiefs  which  await  the  old  plan. 

1.  Either  the  records,  or  copies  of  them,  muff  travel  with  the  courts.  By 
the  former  ftep  they  would  be  always  liable  ro  lofs  or  injury  ;  by  the  latter,  the 
expenfe  to  clients  would  be  greatly ►increafed.  It  will  not  be  enough  to  make 
up  a  fcanty  nifi  prius  roll  only  ;  becaufe  the  court  which  tries  the  caufe,  will 
enter  judgment,  and  mufl:  therefore  have  the  documents  inrire. 

2.  Generally  fpeaking,  two  fets  of  lawyers -will  be  retained.  The  fame  prac- 
titioners will  not  defert  the  more  profitable  bufmcfs  of  the  flate  courts,  to  at- 
tend two  federal  courts,  widely,  diftant  from  each  other,  and  very  probably  in- 
terfering with  the  terms  of  the  ftate  courts :  and  if  they  do  not  ride  with  the 
judges,  the  profpeft  is  equal,  that  a  caufe,  the  original  writ  of  which  is  return- 
able in  one  place,  may  be  ultimately  heard  at  the  other. 

3.  Theoriginal  writs  of  fuits  will  moft  commonly  be  returnable  to  theplace 
neareft  to  the  refidence  of  the  witneffes.  But  if  they  are  to  go  to  the  more  re- 
mote place,  cods  will  be  multiplied,  and  themfelves  put  to  .additional  trouble. 

4.  If  a  culprit  fhould  not  be  tried  at  the  firfl:  feffion,  and  the  judges  cannot 
hold  a  fpecial  intermediate  feffion,  he  mufl:  be  tranfported  in  irons  to  the  next 
place  of  feffion,  or  languifh  in  gaol,  until  the  court  (hall  meet  at  the  place  of 
his  confinement.  And  it  will  be  very  rare,  that  a  fpecial  feffion  can  be  holden 
by  the  judges  of  the  fuprcme  court  at  lead,  as  their  duty  will  hafl:en  them  to 
fome  other  circuit,  and  from  thence  to  the  feat  of  government. 

VII.  Ruks  of       I-  ^t  is  conjectured  that  the  common  law  was  omitted  among  the  rules  of 
cecifton.  decifion,  as  haAing  been  already  the  law  of  the  United  States.     Moft  proba- 

bly this  will  be  feldom  if  ever  controverted.  But  in  one  afpeft  the  exigence 
of  the  common  law,  as  the  law  of  the  United  States,  is  equivocal.  For 
if  the  doctrines  of  the  common  law  can  be  introduced  into  the  federal 
courts,  only  by  recurring  to  them  for  the  explanation  of  the  language,  u^ed 
in  the  laws  of  the  United  States,  and  of  particular  dates;  or  by  the  connec- 
tion which  the  common  law  will  have  with  mod  of  the  fuits  in  the  federal 
courts,  as  arifing  within  fome     articular  ftate :  fome  parts  of  the  common 


L       "      ] 

law,  which  do  not  fall  within  either  of  thefe  chara6lers,  will  be  eflrangcd  from 
our  fyftem. 

To  cut  off  then  fuch  altercation,  is  not  unworthy  the  care  of  Congrefs. 

2.  But  the  common  law  not  being  totally  without  blemifh,  has  been  occa- 
fionaliy  improved  by  ftatute.  Is  the  vvifdom  of  thefe  improvements  to  be  dif- 
carded  ?  It  is  true  indeed,  that  there  ought  to  be  a  repugnance  to  naturalize 
the  ftatute  book  of  a  foreign  nation,  even  for  a  moment.  But  the  fad  is,  that  the 
United  States  have  not  yet  had  fufficient  leifure  to  difengage  themfelves  from 
ir,  by  enabling  a  code  for  themfelves.  The  time  will  come  (perhaps  it  has  already 
come)  when  fuch  a  work  will  be  indifpenfable.  But  until  it  (hall  be  completed, 
it  will  be  far  lefs  difgraceful  to  accept,  under  proper  reftridions,  fome  part  of 
cur  law  from  an  alien  volume,  with  which  every  ftate  is  well  acquainted,  and 
to  which  the  people  have  been  accuftomed  from  their  infant  fettlements,  than 
abruptly  to  unhinge  ancient  legal  tenets.  And  here  the  Attorney-General  begs 
leave  to  conjedure,  that  if  the  two  claufes,  concerning  the  forfeiture  of  the  pe- 
nalty annexed  to  articles, &c.  and  concerning  abatements,bothof  which  have  ori- 
ginated from  ftatutes,  Ihould  alone  be  inferted,  every  other  part  of  the  ftatutes, 
would  be  excluded  by  conftrudion;  except  where  they  are  the  laws  of  a  par- 
ticular ftate,  and  in  cafes  belonging  to  that  ftate. 

Thefe  appear  to  be  the  capital  defiderata.  Other  alterations  will  be  pro- 
pofed  in  the  draught,  which  is  now  offered,  in  obedience  to  the  fecond  part 
of  the  order;  namely,  that  a  report  be  made  of  fuch  provifions  as  may  feem 
advifeable. 


SECOND     PART. 

THIS  bill,  althotigh  not  formally  divided  into  cardinal  parts,  is  yet  divifible 
into  four.  The  firft  contains  all  that  is  peculiar  to  the  organization  of 
thediftridt  courts  ;  the  fecond,  to  that  of  the  circuit  courts  ;  the  third,  to  that 
of  the  fupreme  court ;  and  the  fourth,  what  is  common  to  two,  or  the  whole 
of  them. 

The  conftitution,  the  common  law,  and  equity  have  ftiortened  the  derail. 
But  in  the  progrefs  of  the  draught,  the  alternative  was  always  in  view, 
either  to  make  it  immenfely  proHx,  by  re-enading  the  neceifary  ftatutes,  or 
to  confider  that  thofe  of  a  certain  general  nature  would  be  fpecially  adopted. 
For  the  Attorney-General  repeats,  that  the  chafm  will  be  found  diftrefling  in 
pradice  without  fuch  adoption.  The  latter  then  was  preferred,  as  being  in- 
capable of  any  fatal  error.  In  the  former  too  much  might  have  been  omitted 
without  longer  premeditation,  and  the  very  changes  of  language  might  gene- 
rate confufion. 

He  therefore  requefts,  that  whenfoever,  on  the  perufal,  any  thing  feems  to 
be  too  flightlv  touched,  or  unnoticed,  it  fliould  be  enquired,  in  what  manner 
the  Conftitution  of  the  United  States,  equity,  the  common  and  ftatute  law 
have  provided' for  the  cafe,  and  whether  they  have  not  provided  fufficiently. 

A  BIL  L  for  a)nending  ihefe'veral  Acls  concerning  the  Judicial  Courts  of  the 

United  States. 
BE  it  enaded  by  the  Senate  and  Houfe  of  Reprefentatives  of  the   United  i.    DiviCon 
States  of  America  in  Congrefs  aflembled,  that  the  United  States  fliall  be,  and  '"'°  ^^'ft""^*- 
they  are  hereby  divided  into  fifteen  diftrids,  to  be  limited  and  called  as  follows, 

D 


c 


12 


3 


:.     Diftri<fc 
courts  and 
j.idges. 


3     Selfions 
rhe  diltrict 
courts. 
I.     Stated. 


of 


•to  wit :  One  to  confifl  of  that  part  of  the  ftate  of  Maffachufett?  which  lies 
eafterly  of  the  ftate  of  New-Hamp{hire,  and  to  be  called  Maine  diftrict  ;  one 
to  confift  of  the  ftate  of  New-Hampftiire,  and  to  be  called  New-Hampfhire 
diftrid  ;  one  to  confift  of  the  remaining  part  of  the  ftate  of  Malfachufetts,  and 
to  be  called  Maflachufetts  diftri«5l ;  one  to  confift  of  the  ftate  of  Rhode-Ifland 
and  Providence  Plantations,  and  to  be  called  the  diftri£t  of  Rhode-Ifland  and 
Providence  Plantations  ;  one  to  confift  of  the  ftate  of  Conne6licut,  and  to  be 
called  Connedicut  diftridt ;  one  to  confift  of  the  ftate  of  New- York,  and  to 
be  called  New-York  diftridt ;  one  to  confift  of  the  ftate  of  New-Jerfey,  and  to 
be  called  New-Jerfey  diftricl ;  one  to  confift  of  the  ftate  of  Pennfylvania,  and 
to  be  called  Pennfylvania  diftrift  ;  one  to  confift  of  the  ftate  of  Delaware,  and 
to  be  called  Delaware  diftrift  ;  one  to  confift  of  the  ftate  of  Maryland,  and  to 
be  called  Maryland  diftrict ;  one  to  confift  of  the  ftate  of  Virginia,  except  that 
part  called  the  diftrid  of  Kentucky,  and  to  be  called  Virginia  diftrid  ;  one  to 
confift  of  the  diftrid  of  Kentucky,  and  to  be  called  Kentucky  diftrid  ;  one  to 
confift  of  the  ftate  of  North-Carolina,  and  to  be  called  North-Carolina  diftrid  ; 
one  to  confift  of  the  ftate  of  South-Carolina,  and  to  be  called  South-Carolina 
diftrift  ;  and  one  to  conilft  of  the  ftaie  of  Georgia,  and  to  be  called  Georgia 
diftrid.     ^Note  i.] 

And  be  it  further  enaded.  That  there  be  a  court  called  a  diftrid  court  in 
each  of  the  aforefaid  diftrids  ;  that  it  fhall  confift  of  one  judge,  who  fhall  refide 
in  the  diftrid  for  the  court  of  which  he  is,  or  ftiall  be  appointed,  and  (hall  be 
called  a  diftrid  judge ;  and  that  before  he  proceeds  to  execute  the  duties  of 
his  faid  office,  he  fliall  take  the  following  oath  or  affirmation,  to  wit :  "  I,  A.B. 
do  folemnly  fwear  or  affirm,  that  I  will  adminifter  juftice  without  refped  to 
perfons,  and  do  equal  right  to  the  poor  and  to  the  rich  ;  and  that  I  will  faith- 
fully and  impartially  difcharge  and  perform  all  the  duties  incumbent  on  me  as 
judge  of  the  diftrid  of  according  to  the  beft  of  my  abilities  and  under- 

ftanding,  agreeably  to  the  conftitution  and  laws  of  the  United  States.  So  help 
me  God  :" — Which  oath  or  affirmation  ftiall  be  adminiftered  by  any  one  of 
the  juftices  of  the  fupreme  court  of  the  United  States ;  any  diftrid  judge  of 
the  United  States  ;  any  judge  or  juftice  of  the  peace  for  the  ftate  forming  the 
diftrid  ;  or  the  clerk  of  the  diftrid  court :  and  a  certificate  thereof  ftiall  be 
recorded  in  the  diftricl  court. 

And  be  it  further  enaded.  That  each  diftrid  court  Ihall  hold  two  ftated 
feffions  in  every  year,  at  the  times  and  places,  and  for  the  terms  following, 
that  is  to  fay  :  [AV<?  2. J 


Specul. 


That  each  diftrid  court  ftiall  alfo  hold  fpecial  feffions  for  the  purpofes  here- 
in after  mentioned,  at  fuch  times  as  the  judge  thereof  ftiall  appoint,  and  at  the 
places  following,  that  is  to  fay : 


Prcvifor,  as  to 
the  place  and 
aJjournmcnt. 


Provided  always.  That  the  faid  courts  ftiall  be  holden  in  fome  public  court- 
houfe,  where  the  fame  can  be  obtained;  and  that  it  ftiall  be  lawful  forthe 
Prefident  of  the  United  States,  in  vacation,  or  to  the  refpedive  courts,  if  it 
ftiall  be  rendered  necefl"ary  by  any  infedious  diforder  or  other  caufe,  to  dired 
the  feffions  of  the  faid  courts,  whether  ftated  or  fpecial,  to  be  holden  at  fome 
more  fit  place  within  the  faid  diftrids  refpedively,  until  the  faid  caufe  ftiall  be 
removed.     [^NcU  3.] 


coaris. 


:or. 

t 


[  13  ] 

And  be  it  further  enacted,  That  no  ftate  court  fliall  take  cognizance  of,  or  4.    ExcIuRoc 
exercife  jurifdiclion  in  any  of  the  following  cafes,  to  wit  :  of  the  naic 

J.  Cafes  of  admiralty,  and  maritime  jurifdidion. 

2.  Controverfies,  to  which  the  United  States  fhall  be  a  party  defendant. 

3.  Controverfies,   to  which  a  particular  ftate  fhall  be  a  party  defendant  ; 

except  where  a  ftate  may   have  authorized  a  fuit   to  be  brought 
againft  itfelf  in  its  own  courts. 

4.  Controverfies  for  lands  claimed  under  grants  of  different  ftates. 

5.  Treafon  againft  the  United  States,  and  crimes  and  offences  created  by 

Congrefs,  unlefs  the  cognizance   thereof  fhall  be  vefted  by  law  in 
the  faid  ftate  courts,  or  ftate  magiftrates.     And, 

6.  Rights  created   by  Congrefs,    and  having  a  fpecial   remedy  given  to 

them  in  the  federal  courts.     [_Note  4.3 
And  be  it  further  enaded.  That  each  diftridl  court  (hall,  under  the  regiila-  ^    i^n{c\h 
tions  and  reftriftions  hereinafter  mentioned,  have  original  jurifdiclion  of  all  of 
cafes  in  law  and  equity,  arifing —  courts. 

1.  Under  the  Conftitution  of  the  United  States. 

2.  The  laws  of  the  United  States  :  And, 

3.  Treaties  made,  or  which  ftiall  be  made  under  their  authority. 

4.  Of  all  cafes  affefting  ambalTadors,  and  other  public  minifters  being 

plaintiffs,    or    confuls   or   vice-confuls,    being  plaintiffs   or  defen- 
dants.    \_Note  5.] 

5.  Of  all  civil  cafes  of  admiralty  and  maritime  jurifdiftion. 

6.  Of  piracies  and  felonies  on  the  high  feas. 

7.  Of  crimes  and  oftences  created  by  Congrefs,  arifins^  within  its  proper 

diftria. 

8.  Of  controverfies  upon  rights  created  by  Congrefs,  and  having  a  fpe- 

cial remedy  given  thereto  in  the  federal  courts. 

9.  Of  all  controverfies  to  which  the  United  States   (hall  be  a  party- 

plaintiff. 

10.  Of  all  controverfies  between  a  ftate  being  plaintiff,    and  the  citizens 

of  another  ftate. 

11.  Of  all  controverfies  between  citizens  of  different  ftates  not  claiming 

lands  under  the  grants  of  different  ftates. 

12.  And  of  all  controverfies  between  a  ftate  being  plaintiff,  and  foreign 

citizens  or  ftibjeds,  or  between  the  citizens  of  a  ftate,  and  foreign 

citizens  or  fubjefts. 
Provided  always,  and  be  it  further  enafted.  That  the  aforefaid  jurlfdidllon  6.  Regulations 
of  the  dldria  courts  fhall  be  under  the  regulations  and  reftrictions  following,  of'^thf 'dtiiria 
that  is  to  fay  :  junfdiaion. 

1.  No  perfon  fhall  fue  out  any  original  procefs,  or  commence  any  original 
fuit  in  a  diftrift  court  for  the  trial  of  any  matter  or  thing  of  lefs  value  than 

dollars,  on  pain  of  having  the  fame  difmiffed  with  cofts ;  except  in 
cafes  of  admiralty  and  maritime  jurifdiclion,  and  in  offences  againft  the  reve- 
nue laws.      \^Note  6.] 

2.  No  fuit  fhall  bebrbught  or  fuftained  in  equity,  in  the  faid  diflrict  courts, 
except  in  cafes  of  fraud,  accident,  truft,  and  unconicionable  hardfnip,  or  where 
the  mode  of  proof,  or  the  mode  of  relief  at  common  law,  be  incompetent  to 
the  cafe  of  the  complainant,  or  where  perfons,  not  refidcnt  in  the  United  States, 
and  having  any  eftate  or  debts  in  the  hands  of  another,  refident  within  the 
diftridl  for  which  fuch  court  is  held,  fhall,  together  with  that  other  perfon,  be 
made  defendant ;  and  in  the  laft  mentioned  cafe,  the  decree  may  fubjcft  fuch 
eftate  and  debts  to  the  demand  of  the  complainant.     \_Note  y.~] 

3.  The  judge  of  a  diftricl  court  may  iffue  writs  of  ne-exeat,  returnable  to 
the  faid  court,  againft  any  perfon  who  is  about  to  depart  from  any  diftridl. 


C  H  ] 

und  who  may  be  liaible  to  be  fued  in  equity  in  the  faid  diftricl  courts.  The 
writs  of  ne-exeat,  ihall  command  the  defendant  to  find  fufficient  fecurity,  in  a 
funi  to  be  exprefled  therein  by  the  direction  of  the  judge,  that  he  will  not  de- 
part the  diftricl  without  the  leave  of  ihe  court ;  and  the  plaintiff,  or  fome 
relponfible  perfon  in  his  behalf,  Ihall,  at  the  time  of  obtaining  the  writ,  enter 
into  bond  with  fufficient  fecurity,  in  the  clerk's  office -of  the  diftrid:  court,  to 
anfwer  all  damages  which  may  accrue  to  the  defendant  from  the  faid  writ. 

4.  Writs  of  injunftion  in  equity,  may  be  granted  by  the  judge  of  a  diftrid 
court,  to  judgments  of  the  faid  court  at  common  law.  But  the  plaintiff,  or  fome 
refponfible  perfon  in  his  behalf,  fhall,  at  the  time  of  obtaining  the  faid  writ, 
enter  into  bond  with  fufficient  fecurity  in  the  clerk*s  office  of  thediftricl  court, 
to  anfwer  damages  at  the  rate  of  ten  per  centum,  in  cafe  fuch  injunction  fhall 
be  diffolved.  And  no  injundion  in  equity  fliall  be  granted  by  a  diftrid  court 
to  a  judgment  at  law  of  a  ftate  court.     [Not£  8.] 

5.  The  jurifdidion  herein  before  given  to  the  diflricl  courts  over  cafes 
arifmg  under  the  Conflitution,  the  laws  and  treaties  of  the  United  States,  fhalJ 
not  be  conftrued  to  comprehend  fuch  cafes  in  which  the  United  States,  or  a 
particular  flate,  fhall  be  defendant.     [_Note  9.] 

6.  In  all  crimes  and  offences  tried  by  any  diflriO:  court,  the  punifhment  for 
which,  if  confifting  of  ftripes,  imprifonment,  or  a  fine,  is  left  to  the  difcretion 
ofa  jury  or  the  court,  the  flripes  fhall  not  exceed  thirty,,  nor  the  imprifonment 
fix  calendar  months,  nor  the  fine  one  hundred  dollars.  And  wherefoever,  in 
any  crime  or  offence,  cognizable  under  the  authority  of  the  United  States,  the 
puniffiment  by  flripes,  imprifonment  or  fine  be  exprefsly  defined  by  law,  and 
be  greater  than  the  number,  the  time,  and  the  fum  aforefaid,  or  wherefoever 
the  punifhment  fhall  affeft  life  or  limb,  nodiftrict  court  fhall  exercife  jurifdic- 
tion  therein,  unlefs  the  offender  being  adually  in  prifon,  fhall,  by  petition  to 
the  faid  court,  requefl  it  ;  and  thereupon,  if  it  fhall  appear  to  the  faid  court 
that  due  notice  and  fufficient  time  have  been  given  to  the  officers  of  the  United 
States  concerned,  to  prepare  for  the  hearing,  and  that  the  circuit  courts  herein 
after  mentioned,  have  not  already  had  poffeffion  of  the  cafe,  and  that  it  would 
tend  to  expedite  its  decifion,  if  the  faid  diftrift  court  flvould  take  cognizance  of 
it,  it  fliall  be  lawful  for  the  faid  diflrici  court  to  hear  and  determine  the  fame  ; 
but  this  reltriction  of  the  jurifdidion  by  this  act  given  to  the  diftrift  courts, 
Jhall  not  be  conftrued  to  extend  to  the  diftrict  courts  in  the  diHritls  of  Ken- 
tucky or  Maine.     \'Note  10.] 

7.  No  civil  fuit,  being  ofa  tranfitory  nature  only,  fhall  be  brmight  againfl 
an  itihabitant  of  the  United  States,  in  any  diftrici  court  other  than  that  of  the 
diltricl  to  which  he  belongs,  unlefs  procefs  for  the  fame  caufe  fhall  have  been 
firft  returned  in  the  faid  diftrict  court,  that  he  was  not  found,  or  he  fliall  be 
abfcoQ^ing  from  his  faid  diftridt  at  the  time  of  fuch  fuit  being  brought,  or  he 
fli.aU  be  privy  or  a  party  i^iintereft  with  a  perfon  refident  within  the  diftrid 
of  the  firfl  mentioned  court :  And  all  fuits  brought  contrary  hereto,  may  be 
difmilfed  on  motion. 

8.  No  diltrift  court  fhall  have  cognizance  of  any  fuit,  to  recover  the  con- 
tents of  any  proniiffory  note,  or  other  chofe  in  action  in  favor  of  an  affignee, 
unlefs  a  fuit  might  have  been  profecuted  in  fuch  court  to  recover  the  faid  con- 
tents, if  no  affignment  had  been  made,  except  in  cafes  of  foreign  bills  of  ex- 
change. 

q.  No  perfon  whatfoever  fhall,  in  any  civil  adion  or  fuit  brought  in  a  dif- 
trici court,  be  arrefted  or  lummoned  in  one  diftrid  for  trial  in  another,  unlefs 
he  be  privy  or  a  party  in  intereft  ?s  aforefaid,  in  which  cafe  he  may  be  fum- 
mone.d.     \_Note  it.] 

10.  Local  adions  flitill  be  brought  in  the  court  of  the  diftrid  in  which 
they  arife. 


courts. 


[      15      J 

II.  No  fpecial  feffion  of  adiftrid:  court  fhallbeheld,  but  for  civil  ca.ufes 
of  admiralty  and  maritime  jurifdiftion  as  aforefaid;  and  for  feizures  under  the 
laws  of  impoft,  navigation  or  trade  of  the>United  States,  and  no  fuch  caufe 
ihall  be  heard  at  any  llated  feffion  of  the  faid  court.     [Note  1 2.] 

And  be  it  further  enaded,  That  the  judges  of  the  diftridl  courts  fhall  be  con-  7.  Confervator* 
fervators  of  the  peace  of  the  United  States  throughout  their  refpcdive  di-  °f^=P^^". 
ftrifts.     [Note  13.] 

And  be  it  further  enafted.  That  each  diftridt  court,  or  the  iud^e  in  vaca-  ?•  ^.'i''^'  ^^'^* 

•1111  ri'iTL  autrict  court*. 

tion  fhall  have  power  to  appomt  the  clerk  thereor,  who,  berore  he  enters  upon 
the  execution  of  his  office,  ffiall  take  the  following  oath  or  affiArmation,  to  be 
adminiftered  by  the  faid  judge  :  "  I,  A.  B.  being  appointed  clerk  of  the  dirtrldt 
of  do  folemnly  fwear,  or  affirm,  that  I  will  truly  and  faithfully 

enter  and  record  all  the  orders,  decrees,  judgments,  and  proceedings  of  the  faid 
court,  and  that  I  will  faithfully  and  impartially  difcharge  and  perform  all  the 
duties  of  my  faid  office,  according  to  the  bed  of  my  abilities  and  underftand- 
ing.  So  help  me  God:"  but  the  words  "  So  help  me  God,"  ffiall  be  omitted 
in  all  cafes  of  affirmation.  And  the  faid  clerk  ffiall  give  bond  to  the  United 
States  in  a  reafonable  penalty,  with  one  furety  at  lead,  to  be  approved  by  the 
faid  diftrift  judge,  conditioned  faithfully  to  discharge  the  duties  of  his  office,  and 
feafonably  to  record  the  decrees,  judgments,  and  orders  of  the  faid  co'urt ; 
which  bond  ffiall  be  recorded  in  the  faiJ  diftridb  court,  and  ffiall  rtot  be  void 
upon  the  firft  recovery,  but  may  be  put  in  fuit,  and  profecuted  from  time  to 
time,  at  the  cofts  and  charges  of  any  party  or  parties  injured,  until  the  whole 
fum  of  the  penalty  expreffed  in  fuch  bond  ffiiall  be  recovered  thereon. 

And  be  it  further  enacted,  That  a  marffial  ffiall  be  appointed  in  and  for  each  9.  Marfh?.].  ot 
diftrid  for  the  term  of  four  years  ;  but  ffiall  be  removable  from  office  at  plea-  '^^  "^'^'"'^ 
fure.  That  before  he  enters  on  the  duties  of  his  office,  he  ffiall  become  bound 
to  the  United  States  before  the  judge  of  the  faid  diftrict,  jointly  and  feverally 
with  two  good  and  fufficient  fureties,  inhabitants,  and  freeholders  in  the  faid 
diftrift,  to  be  approved  by  the  faid  diftri<fl:  judge,  in  the  penal  fum  of  twenty 
thoufand  dollars,  conditioned  for  the  faithful  difcharge  of  the  faid  office  by 
himfelf  and  his  deputies  herein  after  mentioned ;  and  ffiall  moreover  take  be«- 
fore  the  faid  judge,  the  following  oath  or  affirmation,  omitting  in  the  cafe  of 
affirmation  the  words,  "  So  help  me  God."  "  I,  A.  B.  do  folemnly  fwear,  or 
affirm,  that  I  will  faithfully  execute  all  lawful  precepts  direfted  to  the  marffial 
of  the  diflrift  of  under  the  authority  of  the  United  States, 

and  true  returns  make,  and  in  all  things  well  and  truly,  and  without  malice 
or  partiality,  perform  the  duties  of  the  marffial  of  the  laid  diftrid:  of 

during  my  continuance  in  the  faid  office,  and  take  only  my  lawful 
fees.  So  help  me  God."  That  the  faid  marffial  ffiall  be  adjudged  to  be  an 
officer  of  the  court  of  the  diftricl  for  which  he  ffiall  be  fo  appointed  ;  ffiall  at- 
tend the  fame  accordingly ;  ffiall  execute  throughout  the  diftrid:  all  writs, 
precepts,  fummonfes,  and  procefs  iflued  under  the  authority  of  the  United 
States,  and  directed  to  him ;  and  ffiall  have  power  to  command  all  neceffary 
affiftance  in  the  execution  of  his  duty. 

That  it.ffiall  be  alfo  lav/ful  for  each  marffial  to  appoint,  as  he  ffiall  fee  occafion, 
one  or  more  deputies,  who  ffiall  be  removable  from  office  by  the  diftrid  judge, 
and  before  they  enter  on  the  duties  of  their  office,  fliall  take  before  the  diftrid 
judge  the  oath  or  affirmation  aforefaid,  prefcribed  to  be  taken  by  the  marffial, 
changing  the  word  ''  marffial,"  where  it  occurs  in  thefecond  plaCe  in  the  faid 
oath  or  affirmation,  to  the  words  "  the  marffial's  deputy  ;"  that  in  cafe  of  the 
death  of  any  marffial,  his  deputy  or  deputies  ffiall  continue  in  office,  unlefs  fpe- 
ci''lly  removed  as  aforefaid,  and  ffiall  execute  the  fame  in  the  name  of  the 
deceafed,  until  another  marffial  ffiall  be  duly  qualified ;  that  the  executor  or 
adminiflrator  of  any  deceafed  marffial  ffiall  have  like  remedy  for  the  faults  and 

£ 


[        j6       j 

misfeafances  in  office  oF  his  deputy  or  deputies,  which  fhall  happen  after  the 
faid  marfhal's  death,  as  lor  thoie  which  may  have  happened  in  his  Ufe  time. 

That  every  marihal,  and  a  deputy  or  deputies,  when  removed  from  office, 
or  when  the  term  for  which  the  marihal  was  appointed,  fhall  expire,  fhail  have 
power  notwithflanding  to  execute  all  fuch  writs,  precepts,  fummonfes  and 
procefs  as  may  be  in  their  hands  refpeclively,  at  the  time  of  fuch  removal  or 
expiration  of  office,  unlefs  the  judge  of  the  diflrid  court  fliall  otherwife  di- 
rccl.     INote  14.] 

That  the  marfhal,  or  in  caf<  of  his  death  his  eftate  fhall  be  anfwerable  for  the 
delivery  to  his  fuccelTor  of  all  prifoners  who  may  be  in  his  cuftody  at  the  time 
of  his  death  or  removal,  or  the  expiration  of  the  term  of  his  appointment,  and 
for  that  purpofe  the  marihal  when  living,  or  his  deputies  in  cafe  of  his  death, 
may  retain  fuch  prifoners  in  cullody  until  a  fucceffor  Ihall  be  duly  qualified, 
unlefs  the  judge  of  the  diftrict  court  Ihall  otherwife  direO:.  But  nothing  herein 
contained  fhall  fubjed  a  marfhal  for  any  omiifion  or  misfeafance  of  the  keepers 
of  the  flate  gaols. 

That  in  all  cafes  wherein  the  marfhal  or  his  deputy  fhall  be  interefled,  or 
fhall  not  be  an  indifferent  perfon,  the  writs,  precepts,  fummonfes  and  procefs 
Ihall  be  direfted  to  fuch  difmterefted  or  indifferent  perfon  as  the  diftri 61  judge 
may  ^ippoint ;  and  the  perfon  fo  appointed,  is  hereby  authorized  to  execute 
and  return  the  fame. 

That  the  bond  fo  to  be  given  as  aforefaid  by  each  marfhal,  fhall  be  forfeited, 
not  only  by  the  defaults  and  misfeafances  in  office  of  himfelf  or  his  deputy  or 
deputies  in  his  life  time,  but  alfo  for  the  defaults  and  misfeafances  of  a  deputy 
•or  deputies  after  his  death  in  the  cafes  aforefaid  j  fhall  be  recorded  in  the  faid 
diltrid  court ;  and  fliall  not  be  void  upon  the  firlt  recovery,  but  may  be  put 
in  fuit,  and  profecuted  from  time  to  time,  by  and  at  the  cofts  and  charges  of 
any  party  or  parties  injured,  until  the  whole  fum  of  the  penalty  expreffed  in 
fuch  bond  fnall  be  recovered  thereon. 

And  that  the  faid  marfhal  fhall  be  liable  on  motion,  after  ten  days  previous 
notice,  to  judgment  in  his  diftrid  court,  and  execution,  for  monies  received 
by  himfelf  or  his  deputies,  by  virtue  of  their  offices,  and  not  duly  paid  to  the 
perfon  intitled  thereto,  upon  application  for  the  fame. 

And  be  it  further  enafted.  That  until  it  fhall  be  otherwife  provided  by  law, 
rle!ks  and  ma",  the  rates  of  fees  (except  the  fees  to  judges)  and  the  allowances  to  witneffes, 
fhaisin  the  dif-  fhall  be  the  fame  in  the  diftricl  courts,  as  in  fimilar  cafes  in  the  fupreme  court 
*"^  in  the  laft  refort,  of  the  ftate  of  which  the  diflritt  confiils  ;  and  for  the  fervices 

of  the  clerks  and  marfhals  in  cafes  which  are  unlike  to  thofe  in  the  faid  fupreme 
court,  a  reafonable  compenfation  fhall  be  paid  by  the  parties,  to  be  determined 
by  the  diftrict  courts,  according  to  equity  and  the  nature  of  the  cafe  ;  that  all 
tlie  faid  fees  and  comjjenfations  not  received  in  cafh,  fhall  be  collected  by  the 
marflial  or  his  deputies,  according  to  the  laws  of  the  ftate  for  colledling  fuch 
.  fees,  and  fhall  be  accounted  for  to  the  faid  diftrift  courts  at  every  feffion,  when 
an  entry  fhall  be  made  of  the  fums  appearing  to  have  accrued,  a  copy  of  which 
fhall  be  tranfmitted  by  the  judge  to  the  circuit  courts,  for  the  purpofes  herein 
after  mentioned. 
"   '\'^r(r"{      ^^^  ^^  ^^  further  enafted.  That  there  fhall  be  no  difcontinuance  of  any  fuit, 
courts.  procefs,  matter  or  thing  returnable  to,  or  depending  in  any  diftrift  court,  al- 

though a  judge  fhall  not  have  been  appointed  to  a  vacancy,  or  the  judge  fhall 
fail  to  attend  at  the  commencement,  or  any  other  day  of  a  feffion ;  but  the 
judge  may  at  the  commencement  of  a  feffion,  by  a  written  order,  direO:  the 
marflial  of  the  diftrift  to  adjourn  the  court  from  day  to  day,  for  three  days 
fucceffively,  and  if  he  fhall  not  attend  on  the  fourth,  or  having  attended  one 
day,  fhall  fail  to  attend  on  a  fubfequent  day  of  a  feffion,  the  court  fhall  ftand 
adjourned  to  the  court  in  courfe. 


[        ^7        ] 

And  be  it  further  enaded,  That  fuch  writs,  fummonfes,  and  other  procefs,  jo.  p.oceed. 
fhall  be  ifTued  from  the  feveral  diftrict  courts  for  the  commencement  and  pro-  '"gs  >"  ''=«  dif- 
fecution  of  any  civil  action,  fuit  or  matter  therein;  and  that  the  forms  and  '""'^<^'^"^- 
modes  of  proceeding  in  conducting  the  lame  to  a  trial  or  hearing  fliall  be  fuch 
as  the  fupreme  court,  according  to  the  regulations  herein  after  provided  Ihall 
dired.  But  until  directions  Ihall  be  fo  given  by  the  fupreme  court,  and  in 
cafes  not  herein  otherwife  provided  for,  the  writs,  fummonfes,  procefs,  forms 
and  modes  aforefaid,  (hall  be  in  cafes  at  common  law,  as  nearly  as  may  be 
according  to  the  practice  of  the  higheft  flate  court  of  common  law  in  each 
diitrift,  having  original  and  general  jurifdidtion ;  and  in  cafes  in  equity,  ac- 
cording to  the  praftice  of  the  higheit  ftate  court  of  equity  in  each  diftritl, 
having  original  and  general  jurifdictlon,  and  where  no  fuch  court  of  equity 
exilts  in  any  ftate,  the  diftrift  court  lliall  proceed  in  equity,  according  to  the 
forms,  modes,  rules  and  ufages  which  belong  to  a  court  of  equity,  as  contra- 
diftinguilhed  from  a  court  of  common  law  ;  and  in  cafes  of  admiralty,  the  dif- 
trid  courts  fliaU  proceed  according  to  the  pradice  of  the  admiralty,  properly 
fo  called:  and  every  diftrid  judge  Ihall  moreover  have  the  fame  power  to  iffue 
writs  of  habeas  corpus,  returnable  in  vacation  before  himfelf,  as  in  fefiion  re- 
turnable to  the  court. 

And  be  it  further  enacted.  That  it  fnall  be  lawful  for  each  diftrict  judge,  for  13-  Ball  in  the 
good  caufe  fhewn,  to  direO:  appearance-bail  to  be  required  ;  and  for  every  dif-  '^'^"^  '^°^'*^' 
trid  court,  upon  like  caufe,  to  re-quire  fpecial  bail :  that  a  plaintiff  iffuing  a 
capeas,  may  alfo  obtain  an  indorfement  thereon  from  the  clerk,  requiring 
appearance-bail,  upon  lodging  with  the  faid  clerk  an  affidavit,  that  the  defen- 
dant from  whom  bail  is  fo  required,  is,  as  far  as  the  plaintiff  knows  or  beheves, 
not  a  refident  within  the  United  States,  or  that  a  writ  has  been  returned  inlhe 
fame  cafe  to  the  court  of  the  diftrid  in  which  he  refides,  and  that  the  defendant 
was  not  found  there,  and  that  the  defendant  is  indebted  to  the  plaintiff  to  the 
amount  of  or  detains  perfonal  property  from  him  to  a  like  amount ; 

and  fhall  moreover  give  in  the  clerk's  oflice,  bond  with  fufficiem  furety  to  the 
defendant,  in  a  realbnable  penalty,  conditioned  to  anfwer  all  damages  which 
may  accrue  to  the  defendant,  if  it  fhould  thereafter  appear,  that  bail  has  been 
thus  required  for  the  fake  of  vexation. 

That  the  feveral  diftrid  courts  may  appoint  proper  perfons  for  taking  fpeciaJ 
bail ;  who  Ihall  without  delay  tranfmit  the  recognizances  of  bail  to  the  clerks 
of  the  faid  courts. 

That  the  feveral  marfhals  and  their  deputies,  Ihall  take  bail  bonds  for  ap- 
pearances ;  and  fhall  tranfmit  them  without  delay  to  the  clerks  of  their  refped- 
ive  courts. 

That  if  thefufficiency  of  bail  be  objeded  to,  reafonable  notice  of  fuch  objec- 
tion fhall  be  given  to  the  marfhal  or  the  deputy  taking  fuch  bail,  before  a  mo- 
tion fhall  be  made  concerning  it :  that  if  upon  a  motion  before  the  court,  the 
bail  be  adjudged  infufficient,  the  marflial  fhall  be  anfwerable  therefor  ;  Provi- 
ded always,  that  it  fhall  be  a  juftification  of  the  marfhal,  if  an  affidavit  fhall 
have  been  made  previous  to  the  acceptance  of  the  bail,  verifying  the  fufficiency 
thereof;  unlefs  it  can  be  proved,  that  the  faid  marfhal,  or  the  deputy  who  took 
the  fame,  had  good  reafon  to  fufped  fuch  fufficiency. 

And  that  the  fpecial  bail  may  furrender  the  principal  either  before  or  after 
judgment,  to  the  marfhal  or  his  deputies  belonging  to  the  court  in  which  the 
fuit  fhall  be  brought,  and  may  thereby  difcharge  himfelf.  And  if  the  princi- 
pal cannot  give  other  fpecial  bail,  he  fhall  be  committed.     \_Note  15.] 

And  be  it  further  enaded.  That  the  executions  to  be  iffued  from  the  diftrid 
courts  of  the  United  States,  fhall  be  elegit,  capias  ad  fatisfaciendum,  fieri  facias,  f,om  ''the  dif- 
and  levari  facias :  that  the  return  days  thereof  fhall  be  appointed  by  the  diftrid  tria  courts. 
courts  refpedively :  that  there  ftiall  be  the  fpace  of  between  the  date 


C        '8        ] 

of  the  executions,  and  the  return  days :  Provided  always,  That  when  judgment 
fhall  be  entered  in  any  diftrift  court,  in  a  civil  aftion,  it  fhali  be  lawful  for  the 
faid  court  to  flay  the  execution  for  forty-two  days  from  the  time  of  entering 
the  judgment.     [Note   i6.J 

15.  Appeals         And  belt  further  enatled,  That  from  every  final  decree  rendered  by  any  dif- 
and  writs  of  cr-     jr^  rourt  fexcept  thofc  of  Kcntuckv  and  Maine)  in  the  exercife  of  its  admiralty 

ror  on  the  judg-  •-''-*-  V  r  ..,_,.  ^ .     ■'  ,  .  r  r  r  •  1  i        1  r 

mentsofthedif-  and  maritime  and  equity  jurildichon,  and  in  cales  ot  leizure  under  the  laws  ot 
tria  courts.  impofl,  navigation  or  trade  of  the  United  States,  an  appeal  Ihallbe  allowed  to 
the  court  of  the  circuit  in  which  the  diftrid:  lies ;  and  on  all  other  final  judg- 
ments rendered  by  the  faid  diftrict  courts,  a  writ  of  error  maybe  inftitutedin 
the  faid  circuit  court :  And  appeals  and  writs  of  error  may  in  like  manner  be 
inftituted  in  the  fupreme  court  of  the  United  States,  on  the  final  decrees  or 
judgments  of  the  diftrict  courts  of  Kentucky  or  Maine.  But  allfuch  appeals 
and  writs  of  error  fhall  be  fubject  to  the  rules  and  regulations  herein  after  pro- 
vided ;  and  it  fhall  be  alfo  the  duty  of  the  faid  diftrifit  courts,  in  fuits  in  equity, 
and  of  admiralty  and  maritime  jurifdiction,  to  caufe  the  fads  on  v/hich  they 
found  their  fentence  or  decree,  fully  to  appear  upon  the  record,  by  inferting 
the  depofitions  of  the  witnefies  fworn  in  the  caufe,  and  the  exhibits  therein,  at 
large.     \^Note  17.] 

16.  Divjfionin-      And  be  it  further  enafted.  That  the  diftrids  aforefaid-,  except  thofe  of  Ken- 
to  circuits.        tucky  and  Maine,  fhall  be  divided  into  three  circuits,  and  fhall  be  called  the 

Eaftern,  the  Middle,  and  the  Southern  Circuit  :  that  the  Eaftern  Circuit  ftiall 
confift  of  the  diftricts  of  New-Hampfhire,  Maffachufetts,  Rhode-IHand  and  Provi- 
dence Plantations,  Connedicut,  and  New- York  ;  that  the  Middle  Circuit  fhall 
confift  of  the  diftricts  of  New-Jerfey,  Pennfylvania,  Delaware,  Maryland,  and 
Virginia  ;  and  that  the  Southern  Circuit  fhall  confift  of  the  diftrids  of  North- 
Carolina,  South-Carolina,  and  Georgia. 
I.,  cirniit  And  be  it  further  enadted.  That  there  ftiall  be  a  court,  called  a  circuit  court 

courts;  days;    in  each  of  the  aforcmentioncd  circuits,  which  fhall  be  holden  in  each  diftrid 
of  the  faid  circuits  twice  in  every  year,  on  the  following  days,  to  wit : 


tWBlS. 


That  the  faid  circuit  courts  fhall  alfo  have  power  to  hold  fefTions  for  the  trial 
of  criminal  caufes  at  any  other  time  at  their  difcretion,  or  the  difcretion  of 
the  fupreme  court ;  and  that  the  terms  during  which  the  faid  circuit  courts 
fhall  continue  to  fit  at  their  two  ftated  feffions  aforefaid,  fhall  be  juridical 
days,  unlefs  the  bufinefs  ready  for  trial,  fhall  be  fooner  difpatched  ;  in  which 
cafe,  the  court  fhall  be  adjourned  to  the  court  in  courfe.  [Note  18.] 
18.  Places  for  And  be  it  further  enacted.  That  the  places  for  holding  the  faid  circuit  courts 
holding  the  cir-  jj^  ^^^  dlftrifts  of  the  feveral  circuits  aforefaid,  ftiall  be  as  follow: 


•uit  courts. 


Provided  always.  That  the  faid  circuit  courts  fhall  be  holden  in  fome  pubJic 
court  houfe,  where  the  fame  can  be  obtained;  and  that  it  fhall  be  lawful  for 
the  Prefident  of  the  United  States,  in  vacation,  or  to  the  refpedive  courts,  if  it 
fhall  be  rendered  neceffary  by  any  infectious  diforder,  or  other  caufe,  to  dirett 
the  feffions  of  the  faid  courts  to  be  holden  at  fome  more  fit  place  within  the 
faid  diftricls  refpeftively,  until  the  faid  caufe  fliall  be  removed. 
h.dgos  of  And  be  it  further  enaded.  That  the  circuit  courts  aforefaid,  fhall  confift  of 
the  judges  of  the  diftrid  courts  comprehended  within  the  faid  circuits  refpec- 
tively :  that  before  they  proceed  to  execute  the  duties  of  this  office,  they  fhall 


the  circuit 

couru, 


t       '9       ] 

take,  as  judges  of  the  circuit  courts,  the  oath  or  affirmation,  mutatis  mutandis^ 
hereinbefore  prefcribed  to  them,  as  diftrid  judges,  to  be  adminiftered  by  any 
juftice  of  the  fupreme  court  of  the  United  States,  any  diftrid  judge  of  the  Uni- 
ted States,  within  his  proper  diflrid,  or  any  judge  or  juftice  of  the  peace  for  the 
ftate  belonging  to  the  circuit :  that  a  certificate  thereof  fhall  be  recorded  in. 
the  circuit  court  j  and  that  any  three  of  the  diftricl  judges  in  the  eaftern  and 
middle  circuits  ;  and  any  two  of  the  diftridl  judges  in  the  fouthern  circuit  fliall 
conftitute  a  quorum  :  Provided  that  no  diftrict  judge  fhall  give  a  vote  in  any 
appeal  or  writ  of  error  brought  to  reverfe  his  own  decifion ;  but  he  may  aflign 
the  reafons  of  fuch  decifion.     \_Note  19.] 

And  be  it  further  enaded,  That  the  circuit  courts  aforefaid,  (hall,  under  the  ao.   jurifdir- 
regulations  and  reflridions  hereinafter  mentioned,  have  original  iurifdidion  of  ^'°"  ''*'''^'^"'^- 

,P        -        .        ,  ,  .  .^  O  J  CUlt  couits. 

all  cafes  m  law  and  equity  anlmg 

1.  Under  the  Conftltution  of  the  United  States.  ^,   Original. 

2.  The  laws  of  the  United  States. 

3.  And  treaties  made,  or  which  fhall  be  made  under  their  authority, 

4.  Of  all  cafes  affefting  ambaffadors  and  other  public  minifters,  being  plain- 
tiffs, or  confuls  or  vice-confuls,  being  plaintiffs  or  defendants. 

5.  Of  all  controverfies  in  which  the  United  States  fhall  be  a  party. 

6.  Of  all  controverfies  between  a  flate,  being  plaintiff,  and  the  citizens  of 
another  flate.     \_Note  2o,~\ 

7.  Of  all  controverfies  between  citizens  of  different  ftates. 

8.  Of  all  controverfies  between  citizens  of  the  fame  ftate,  claiming  lands 
under  grants  of  different  ftates. 

9.  Of  all  controverfies  between  a  ftate,  being  plaintiff,  or  the  citizens  thereof, 
and  foreign  ftates,  citizens  or  fubjedls. 

10.  Of  piracies  and  felonies  committed  on  the  high  feas. 

11.  Of  crimes  and  offences  created  byCongrefs,  arifing  within  their  refpec- 
tive  circuits :  And 

12.  Of  controverfies  arifmg  upon  rights  created  by  Congrefs,  and  having  a 
fpecial  remedy  given  thereto  in  the  federal  courts. 

That  the  faid  circuit  courts  fhall  alfo  have  appellate  jurifdiftion  over  the  dif-  2.  Appdlatt. 
trift  courts,  under  the  regulations  and  reftridions  hereinafter  provided,  and 
may  iffue  writs  of  prohibition  to  the  circuit  courts,  when  proceeding  as  courts 
of  admiralty  and  maritime  jurildiction,  as  well  as  writs  of  confultation  ;  writs 
of  mandamus,  in  cafes  warranted  by  the  principles  and  ufages  of  law  ;  and 
under  the  authority  of  the  United  States;  and  alfo  writs  of  certiorari  to  the 
diftrid  or  ftate  courts,  according  to  the  rules  hereinafter  prefcribed. 

Provided  always,  and  be  it  further  enaded,  That  the  aforefaid  jurifdidion  ji.    Reguia- 
of  the  circuit  courts  fhall  be  under  the  regulations  and  reftridions  following  ;  *'°."i.^"'^  ''/^^ 

.  -  O  O  '   Undions  of  the 

that  IS  to  lay  :  circuit  jurifdic 

1.  No  perfon  fhall  fue  out  any  original  procefs,  or  commence  any  original  ''°°' 
fuit  in  a  circuit  court,  for  the  trial  of  any  matter  or  thing  of  lefs  value  than 

dollars,  on  pain  of  having  the  fame  difmiffed  with  cofts. 

2.  No  fuit  fhall  be  brought  or  fuftained  in  equity  in  the  faid  circuit  courts, 
except  in  cafes  of  fraud,  accident,  truft,  or  unconfcionable  hardfhip,  or  where 
the  mode  of  proof,  or  the  mode  of  relief  at  common  law,  be  incompetent  to 
the  cafe  of  the  complainant,  or  where  perfons  not  refident  in  the  United  States, 
and  having  any  eftate  or  debts  in  the  hands  of  another  perfon  refident  within 
the  diftrid  in  which  fuch  circuit  court  is  held,  fhall,  together  with  that  other 
perfon,  be  made  defendant :  and  in  the  laft  mentioned  cafe,  the  decree  may  fub- 
jed  fuch  eftate  and  debts  to  the  demand  of  the  complainant. 

3.  The  feveral  circuit  courts,  and  any  judge  thereof,  may  iffue  writs  of 
ne-exeat,  returnable  to  the  faid  courts,  againft  any  perfon  who  is  about  to  depart 
from  the  diftrid,  and  who  may  be  liable  10  be  fued  in  equity  in  the  faid  circuit 

F 


[       ^o       ] 

courts  refpefHvely.  The  writs  of  ne-exeat  fhall  comand  the  defendant  to  give 
fufficient  fecurity  in  a  fum  to  be  expreffed  therein  by  the  dire£lion  of  the  court 
or  judge,  that  he  will  not  go  out  of  the  faid  diflrid,  without  leave  of  the  faid 
court ;  and  the  plaintiff,  or  fome  refponfible  perfon  in  his  behalf,  fhall,  at  the 
time  of  obtaining  the  writ,  enter  into  bond,  with  fufficient  fecurity,  in  the 
clerk's  office,  of  the  circuit  court,  to  anfwer  all  damages  which  may  accrue  to 
the  defendant  from  the  faid  writ. 

4.  Writs  of  injundion  in  equity  may  be  granted  by  the  feveral  circuit  courts, 
or  any  judge  thereof,  to  judgments  of  the  faid  courts  refpedively  at  common 
law,  or  to  judgments  of  common  law  at  any  diftrid  court  within  their  refpec- 
tive  circuits  :  but  the  plaintiff,  or  fome  refponfible  perfon  in  his  behalf,  fhall, 
at  the  time  of  obtaining  the  faid  writ,  enter  into  bond,  with  fufficient  fecurity, 
in  the  clerk's  office  of  the  circuit  court,  to  anfwer  damages  at  the  rate  of  ten 
per  centum,  in  cafe  fuch  injundion  fhall  be  diffolved :  and  no  injundion  in 
equity  fhall  be  granted  by  a  circuit  court  to  a  judgment  at  law  of  a  ftate  court. 

5.  The  jurifdidion  herein  before  given  to  the  circuit  courts  over  cafes 
arifmg  under  the  Conflitution,  the  laws  and  treaties  of  the  United  States,  fhall 
not  be  conflrued  to  comprehend  inch  cafes  in  which  a  particular  flate  fhall  be 
defended.     \_Note  20.] 

6.  No  civil  fuit,  being  of  a  tranfitory  nature  only,  fhall  be  brought  agalnfl 
an  inhabitant  of  the  United  States,  in  any  circuit  court  other  than  that  which 
fhall  be  holden  in  the  diftrid  to  which  he  belongs,  unlefs  procefs  for  the  fame 
caufe  fhall  have  been  firft  returned  in  the  faid  circuit  court,  fo  to  be  holden, 
that  he  was  not  found,  or  he  fhall  be  abfconding  from  his  faid  diftrid,  at  the 
time  of  fuch  fuit  being  brought ;  or  he  fhall  be  a  privy  or  party  in  interefl  with 
a  perfon  refident  in  a  diftrid  within  the  circuit :  and  all  fuits  brought  contra- 
hereto,  may  be  difmiffed  on  motion. 

7.  No  circuit  court  ihall  have  cognizance  of  any  fuit  to  recover  the  contents 
of  any  promiffcry  note,  or  other  chofe  in  adion  in  favor  of  an  affignee,  unlefs 
a  fuit  might  have  been  profecuted  in  fuch  court,  to  recover  the  faid  contents,  if 
no  affignment  had  been  made,  except  in  cafes  of  foreign  bills  of  exchange ;  and 
on  a  change  of  the  venue  herein  after  mentioned. 

8.  No  perfon  whatfoever,  fhall  in  any  civil  adion  or  fuit  brought  in  a  cir- 
cuit court,  be  arrefted  or  fummoned  in  one  diftrid  for  trial  in  another,  unlefs 
he  be  a  privy  or  party  in  intereft  as  aforefaid,  or  the  venue  be  changed,  as  is 
herein  after  mentioned ;  in  which  cafe  he  may  be  fummoned. 

9.  Local  adions  fhall  be  brought  in  the  circuit  court  to  be  holden  in  the 
diftrid  in  which  they  arife. 

5Z,  Conferva-  And  bc  it  further  enaded.  That  the  judges  of  the  circuit  court  fhall  be  con- 
*"."'?f'^^P"*^'=  fervators  of  the  peace  of  the  United  Slates  throughout  their  refpedive  circuits. 
^?t.'°  ^  *^'  And  be  it  further  enaded.  That  the  clerks  of  the  diftrid  courts  fliall  be  alfo 
clerks  of  the  circuit  courts,  appointed  to  be  holden  in  their  refpedive  diftrids: 
23.  Clerks  of  ^-^^^  ^jjgy  {j^^jj  j^j^g  35  clcrks  of  the  circuit  courts,  an  oath  or  affirmation  of  of- 
Lmr"'  fice,   fimilar  to  that  prefcribed  to  them  as  diftrid  clerks ;  which  oath  or  af- 

firmation fhall  be  adminiftered  by  any  juftice  or  judge  of  the  United  States  ; 
and  a  certificate  of  the  taking  of  which  fhall  be  recorded  in  the  circuit  court ; 
and  that  the  bond  and  furety  given  by  them  as  clerks  of  the  diftrid  courts  re- 
fpedively,  fliall  ftand  and  enure  for  their  good  condud  as  clerks  of  the  circuit 
courts. 
14.  ruty  of  And  be  it  further  enaded.  That  themarfhals  of  the  diftrids  aforefaid,  ftiali 
rnuU  in  the  jjg  adjudged  to  be  officers  of  the  circuit  courts  appointed  to  be  holden  in  their 
cult  courts.  j.gj-p^^-^-yg  diftrids,  and  fliall  attend  the  fame  accordingly  ;  that  the  faid  deputies 
fliall  be  removable  from  office  by  the  circuit  courts,  while  fitting  in  the  diftrids 
to  which  the  deputy  or  deputies  \o  removed,  belong  ;  and  that  the  faid  marflials 
and  their  deputies  fhall  be  bound  to  perform,  throughout  their  refpedive  di- 


£iiciut  courts. 


[         21         ] 

ftrifts,  the  fame  duties  in  relation  to  the  bufinefs  of  the  circuit  courts  fitting  in 
their  diftrid:s,  as  they  ought  by  virtue  of  this  ad  to  perform  in  relation  to  the 
bufmefs  of  their  difl:ri6l  courts. 

And  be  it  further  enafted,  That  until  it  fhall  be  otherwife  provided  by  law,  45.  Feesoftitp 
the  fees  and  compenfations  to  the  clerks  and  marfhals,  and  the  allowances  to  c^^j-ks  and  mar- 
witnefles,  fliall  be  the  fame  in  the  circuit,  as  in  the  diftrid  courts  ;  that  they 
Ihall  be  colleded  and  accounted  for  to  the  circuit  courts  refpeftively,  in  the 
fame  manner  as  is  prefcribed  in  the  cafe  of  the  diftrid  courts  /  that  the  circuit 
courts,  (hall,  once  in  every  year,  determine  upon  fome  reafonable  faiisfadlion 
to  be  made  to  the  clerks  and  marfhals  within  their  circuits,  in  confideration  of 
their  offices ;  that  they  ihall  thereupon  enter  upon  record  what  fum,  not  ex- 
ceeding dollars  to  a  clerk,  nor  dollars  to  a  marfhal, 
in  addition  to  the  emolum.ents  arifmg  from  the  diftrid  and  circuit  bufmefs 
aforefaid,  they  ought  to  receive  ;  and  the  fame  fhall  be  paid  accordingly  at  the 
treafury  of  the  United  States.     [Note  21.] 

And  be  it  further  enaded.  That  there  fhall  be  no  difcontinuance  of  any  26.  Adjoum- 
fuit,  procefs,  matter  or  thing  returnable  to,  or  depending  in,  any  circuit  court,  '"'^"'• 
although  a  quorum  of  judges  fhall  fail  to  attend  at  the  commencement,  or  any 
other  day  of  any  fefTion  :  but  if  a  majority  of  them  fhall  fail  to  attend  at  the 
commencement  of  any  fefTion,  the  marfhal  of  the  diflrid  may  adjourn  thecourt 
from  day  to  day  for  three  days  fuccelHvely ;  and  if  a  quorum  fhall  not  attend  on 
the  fourth,  or  having  attended  one  day,  fhall  fail  to  attend  on  a  fubfequent  day 
of  a  fefTion,  the  court  fhall  fland  adjourned  to  the  court  in  courfe. 

And  be  it  further  enaded.  That  fuch  writs,  fummonfes,  and  other  procefs,  27.  procecd- 
fhall  be  ifTued  from  the  feveral  circuit  courts,  for  the  commencement  and  pro-  "^g^- 
fecution  of  any  civil  adion,  fuit,  or  matter  therein  ;  and  that  the  forms  and 
modes  of  proceeding  in  conduding  the  fame  to  atrial  or  hearing,  fhall  be  fuch 
as  the  fupreme  court,  according  to  the  regulations  herein  after  provided,  fhall 
dired.  But  until  diredions  fhall  be  fo  given  by  the  fupreme  court,  the  Attor- 
ney-General fhall  be  fummoned,  where  the  United  States  are  defendant ;  and  in 
other  cafes  not  herein  otherwife  provided  for,  the  writs,  fummonfes,  procefs, 
forms,  and  modes  aforefaid,  (hall  be  in  cafes  at  common  law,  as  nearly  as  may  be, 
according  to  the  pradice  of  the  higheft  ftate  court  of  common  law  in  each  diltrid 
where  the  circuit  courts  fliall  Tit,  having  original  and  general  jurifdidion  ;  and  in 
cafes  in  equity,  according  to  the  highefl  ftate  court  of  equity  in  fuch  diftrid, 
having  original  and  general  jurifdidion  ;  and  where  no  court  of  equity  exifts  in 
any  ftate,  the  circuit  court  in  fuch  ftate  fhall  proceed  in  equity,  according  to  the 
forms,  modes,  rules,  and  ufages  which  belong  to  a  court  of  equity,  SfScontradif- 
tinguifhjed  from  a  court  of  common  law  ;  and  in  cafes  of  admiralty,  the  diftrid: 
courts  fhall  proceed  according  to  the  pradice  of  the  admiralty,  properly  fo 
called  ',  and  every  circuit  judge  fhall  moreover  have  the  fame  power  to  ifTue 
writs  oi  habeas  corpus,  returnable  in  vacation  before  himfelf,  as  a  circuit  judge, 
or  before  any  other  judge  of  his  circuit,  who  (hall  happen  to  be  within  the  dif- 
trid, as  the  circuit  court  has  to  ifTue  fuch  writs  returnable  to  the  court. 

And  be  it  further  enaded,  That  the  power  of  the  circuit  judges,  as  to  ap-  ^g,   BaiUnthc 
pearance-bail,  and  of  the  circuit  courts  as  to  fpecial  bail  and  the  appoinment  of  <^ircuit  courts 
perfons  for  taking  the  fame,  and  the  right  of  the  plaintiff  to  require  bail,  and 
all  other  matters  and  things  concerning  bail,  fhall  be  the  fame,  and  ftiall  be 
governed  by  the  fame  rules  as  are  herein  before  prefcribed  concerning  bail  in 
the  diftrid  courts. 

And  be  it  further  enaded.  That  the  executions  to  be  ifTued  from  the  circuit  29.    Erecu- 
courts  fhall  be  the  fame,  as  thofe  to  be  ifTued  from  the  diftrid  courts  ;  that  the  ';'°."*.'."  ^^^  '^'^' 
return  days  fhall  be  appointed  by  the  circuit  courts  in  like  manner  ;  and  ex- 
ecution may  be  ftayed  for  the  fame  time,  as  in  the  diftrid  courts.     But  it  fhall 
be  lawful  for  a  circuit  court,  for  good  caufe,  to  dired  executions  to  be  ifTued 


cult  courts. 


c 


22 


] 


go.     Amena- 
bility of  the 
circuit  courti  (o 
the  fupreme 
court. 


31.     Supreme 
court. 
Judges  and 
precedence. 


ga.      Oath  of 

juOices  of  the 
fupreme  court. 


33.     ScfTIons 
2nd  places. 


34.     Jurifdic- 
tion  of  the  fu- 
preme court. 

1 .     Original. 


2.     Appellate. 


35.     Confcr- 

vatOiS  of  the 

peart  within 

the  United 

States. 

^6.     Rcpo:ts. 


on  judgments  obtained  In  a  diftrid  court,  within  Its  circuit,  to  any  other  dif- 
trift  within  the  fame. 

And  be  it  further  ena£ted,That  upon  any  final  decree  or  judgment,  rendered 
by  a  circuit  court,  an  appeal  or  writ  of  error  may  be  brought  in  the  fupreme 
court  of  the  United  States,  as  herein  after  is  provided  ;  and  that  it  fliall  be  the 
duty  of  the  circuit  courts,  in  caufes  in  equity,  to  caufe  the  facts  on  whichthey 
found  their  decree,  fully  to  appear  upon  the  record  by  inferting  the  depofi- 
tions  of  the  witnelTes  fworn  in  the  caufe,  and  the  exhibits  therein  at  large. 

And  be  it  further  enafted.  That  the  fupreme  court  of  the  United  States  (hall 
confift,  as  at  prefent,  of  a  chief  juflice,  and  five  aflbciate  juftices,  any  four  of 
whom  fhall  be  a  quorum  :  that  the  aifociate  juftices  Ihall  have  precedence  ac- 
cording to  the  date  of  their  commifrions,or  when  the  commiffions  of  two  or 
more  of  them  bear  date  on  the  fame  day,  according  to  their  refpeftive  ages. 

And  be  it  further  enafted.  That  the  juftices  of  the  fupreme  court,  before 
they  proceed  to  execute  the  duties  of  their  refpedlive  offices,  fhall  take  the  fol- 
lowing oath  or  affirmation,  to  wit ;  "  I,  A.  B.  do  folemnly  fwear  or  affirm,  that 
I  will  adminifter  juftice  without  refpedl  to  perfons,  and  do  equal  right  to  the 
poor  and  to  the  rich,  and  that  I  will  faithfully  and  impartially  difcharge  and 
perform  all  the  duties  incumbent  on  me  as  according  to 

the  beft  of  my  abilities  and  underftanding,  agreeably  to  the  Conftitution  and 
laws  of  the  United  States.  So  help  me  God  ;"  omitting  in  rhe  cafe  of  an  af- 
firmation, the  words  "  So  help  me  God  ;'*  which  oath  or  affirmation  fliall  be 
adminiftered  by  any  juftice  or  judge  of  the  United  States,  or  any  clerk  of  the 
diftrid  or  circuit  court ;  and  a  certificate  of  the  taking  of  which  fhall  be  re- 
corded in  the  fupreme  court. 

And  be  it  further  enacled.  That  the  fupreme  court  fhall  fit  at  the  feat  of  go- 
vernment four  times  in  every  year,  to  wit ;  on  the  firft  Monday  in  the  months 
of  that  each  term  fhall 

continue  for  the  fpace  of  juridical  days,  unlefs  the  bu- 

finefs  depending  before  the  faid  court  fhall  be  fooner  difpatched :  but  the  faid 
court  fhall  have  power  to  prolong  their  feffion  beyond  the  term,  for  expediting 
the  bufinefs  depending  before  them,  if  they  fhall  fee  caufe. 

And  be  it  further  enacled,  That  the  fupreme  court  fhall  have  original  jurif- 
diclion, 

1.  In  all  cafes  affe<5ling  ambaffadors,  other  public  minifters  and  con- 

fuls :  And, 

2.  In  thofe  which  a  ftate  fhall  be  a  party. 

That  in  the  cafes  of  which  the  circuit  courts  aforefald,  and  the  diftrid:  courts 
of  Kentucky  and  Maine  have  cognizance,  the  fupreme  court  fhall  have  appel- 
late jurifdiclion,  under  the  regulations  of  appeals  and  writs  of  error  herein  after 
mentioned  :  that  the  fupreme  court  fhall  have  power  to  iffue  writs  of  mandamus 
according  to  law,  and  writs  of  certiorari  to  the  circuit  and  ftate  courts,  accor- 
ding to  the  rules  herein  after  mentioned,  to  direfl  the  writs,  fummonfes,  procefs, 
forms-and  modes  of  proceeding  to  be  iffued,  obferved  and  purfued  by  the  faid 
fupreme  court,  and  the  diftrid  and  circuit  courts,  taking  care  that  a  letter  mif- 
five,  fignedby  the  chief  juftice,  fhall  be  addreffed,  where  a  ftate  is  defendant, 
to  the  executive  thereof,  and  that  the  Attorney-General  of  the  United  States, 
where  the  United  States  are  defendant,  fhall  be  fummoned,  and  for  good  caufe 
ftiewn,  to  change  the  venue  in  any  fuit  depending  in  a  circuit  court,  fo  as  to  caufe 
the  fame  to  be  tried  in  any  other  circuit  court  in  the  fame  circuit.     \_Note  22.3 

And  be  it  further  enafted.  That  the  juftices  of  the  fupreme  court,  fhall  be 
confervators  of  the  peace  of  the  United  States,  throughout  the  fame. 

And  be  it  further  enafled,  That  the  juftices  of  the  fupreme  court  fhall,  on 
the  conclufion  of  any  appeal  or  writ  of  error,  ftate  the  whole  merits  of  the 
cafe,  tht  queftions  arifing  (herefrom,  the  opinions  of  the  court  thereupon,  and 
a  fummary  of  the  reafons  in  fupport  of  thoie  opinions ;  all  which  fhall  at  the 


C      n     ] 

end  of  each  term,  be  entered  in  a  book  to  be  kept  for  that  purpofe,  and  copies 
fliall  be  tranfmitted  by  the  clerk  to  each  diftridt  and  circuit  court :  that  it  (hall 
be  the  duty  of  each  juftice  of  the  fupreme  court,  prefent  at  the  hearing  of  any 
appeal  or  writ  of  error,  and  differing  from  a  majority  of  the  court,  to  deliver 
his  opinion  in  writing,  to  be  entered  as  aforefaid :  and  that  each  judge  (hall 
deliver  his  opinion  in  open  court. 

And  be  it  further  enabled.  That  as  foon  as  the  juflices  of  the  fupreme  court  37    Table   of 
fhall  have  eftablifhed  a  fyftem  of  praftice  as  aforefaid,  it  (hall  be  the  duty  of  the  ^'"  ""^  '''"'• 
Attorney-General  to  pepare  and  report  to  Congrefs,  a  table  of  fees  and  cofts. 

And  be  it  further  enaded,  That  the  fupreme  court,  or  any  four  juflices  there- 
of, in  vacation,  fliall  have  power  to  appoint  a  clerk  for  the  faid  court,  who  fhall,  p^f  ■^^'^^^^^'^'^^ 
before  he  enters  upon  the  execution  of  his  office,  give  bond,  with  fufficient  fure- 
ties,  to  be  approved  by  the  court,  or  the  juflices  appointing  him,  to  the  United 
States,  in  the  fum  of  two  thoufand  dollars,  conditioned  faithfully  to  difcharge 
the  duties  of  his  office,  and  feafonably  to  record  the  decrees,  judgments  and  or-  ' 
ders  of  the  faid  court ;  which  bond  fhall  be  recorded  in  the  faid  court,  and 
fhall  not  be  void  upon  the  firfl  recovery,  but  may  be  put  in  fuit  and  profecuted 
from  time  to  time,  at  the  cofts  and  charges  of  any  party  or  parties  injured,  un- 
til the  whole  fum  of  the  penalty  expreffed  in  fuch  bond  fhall  be  recovered 
thereon.  And  the  faid  clerk  fhall  alfo  take  an  oath  or  affirmation  of  office, 
fimilar  to  that  prefcribed  in  the  cafe  of  a  diflrift  clerk,  mutatis  mutandis  ;  which 
oath  or  affirmation  fhall  be  adminidered  by  any  judge  of  the  fupreme  court, 
and  a  certificate  of  the  taking  of  which  fhall  be  recorded  in  the  faid  court. 
And  for  his  fervices,  the  clerk  of  the  fupreme  court  fhall  receive  fuch  allowance 
as  the  faid  court  fhall  adjudge,  not  exceeding  dollars  per  annum, 

to  be  paid  at  the  treafury  of  the  United  States. 

And  be  it  further  enacled.  That  the  marfhal  of  the  diflrid  in  which  the  fu-  39.  Marfhal  of 
preme  court  fhall  fit,  fhall  be  adjudged  to  be  an  officer  of  the  faid  court,  and  '^^  fupreme 
fhall  attend  the  fame  accordingly  ;  that  all  the  faid  marfhals  and  their  deputies  """" 
fhall  be  bound  to  perform  throughout  their  diflrift,  the  fame  duties  in  relation 
to  the  bufinefs  of  the  fupreme  court,  as  they  ought,  by  virtue  of  this  a6l,  to 
perform  in  relation  to  the  bufmefs  of  their  diflrift  courts ;  and  the  marffial  at- 
tending the  faid  court  fhall  receive  a  reafonable  allowance  per  day  for  fuch  at- 
tendance, to  be  adjudged  and  certified  by  the  faid  court. 

And  be  it  further  enatted.  That  there  fhall  be  no  difcontinuance  of  any  fuit,  40.  Adionm- 
procefs,  matter  or  thing  returnable  to,  or  depending  in  the  fupreme  court,  al-  ^^^^f  '^^  ^" 
though  a  quorum  of  juflices  fhall  fail  to  attend  at  the 'commencement,  or  any 
other  day  of  any  feffion  ;  but  if  a  majority  of  them  fhall  fail  to  attend  at  the 
commencement  of  any  feffion,  the  marffial  of  the  diflrid  may  adjourn  the  court 
from  day  to  day  for  three  days  fucceffively ;  and  if  a  quorum  ffiall  not  attend 
on  the  fourth,  or  having  attended  one  day,  ffiall  fail  to  attend  on  a  fubfequent 
day  of  a  feffion,  the  court  ffiall  fland  adjourned  to  the  court  in  courfe. 

And  be  it  further  enaded,  That  no  bail  ffiall  be  required  in  any  cafe  depend-  4i-    Bail. 
ing  before  the  fupreme  court,  without  the  fpecial  order  of  the  court.  \_Note  23.] 

And  be  it  further  enaded.  That  the  executions  to  be  iffued  from  the  fu-  ^^-  ^"^^""o"* 
preme  court  fhall  be  the  lame  as  thole  to  be  iflued  from  the  circuit  and  diflria  court, 
courts :  that  the  return  days  ffiall  be  appointed  by  the  fupreme  court  in  like 
manner ;  and  that  the  fupreme  court  may,  for  good  caufe,  direct  executions 
to  be  iffued  on  judgments  obtained  in  a  diflricl  or  circuit  court,  to  any  other 
diftrid  or  circuit. 

And  be  it  further  enacled.  That  it  ffiall  be  lawful  for   either  party  in  any 
a£lion  or  fuit,  in  law  or  equity,   depending  in  any  diflricl  court,  to  petition  a 
judge  of  the  circuit  court  of  tiie  circuit  in  which  fuch  diftrift  lies,  to  remove  the  ^'^' 
fame  to  the  faid  circuit  court  to  be  holden  in  the  faid  diflrid :  and  if  it  ffiall 
appear  to  the  fatisfadion  of  the  faid  judge,  that  there  is  good  caufe  for  a  re- 

G 


[  »4         3 

maval,  and  that  the  cirucit  court  hath  jurifdi6tion  thereof,  the  faid  judge  may 
dired  the  clerk  to  iflue  a  certiorari  for  that  purpofe.  But  the  faid  judge  (hall, 
if  .he  fee  caufe,  require  notice  to  be  given  of  the  faid  petition  to  the  adverfe 
party,  his  agent  or  attorney,  before  he  decides  thereon  ;  and  (hall  be  firft  fatis- 
fied,  where  the  plaintiff  petitions  for  a  removal,  that  the  caufe  aifigned  for 
removal  has  arifen  fmce  the  fuit  brought,  or  vi^as  unknown  to  him  at  the  time 
of  bringing  the  fame :  And  the  faid  circuit  court  may  at  any  time,  for  good 
caufe,  remand  the  faid  fuit  or  controverfy  to  the  diftri£t  court,  by  procedendo. 
That  the  juflices  of  the  fupreme  court  fhall  have  like  power  to  direft  a  certiorari 
to  the  circuit  court,  and  the  fupreme  court  to  remand  by  procedendo^  in  all 
cafes,  in  which,  by  the  Conftitution  of  the  United  States,  the  fupreme  court 
^as  original  jurifdiction.  That  a  certiorari  may  alfo  iifue  from  any  circuit 
court  of  the  United  States,  for  the  removal  of  any  fuit  in  law  or  equicy,  de- 
pending in  any  Hate  court  within  the  circuit,  to  the  circuit  court,  under  the 
following  regulations. 

1.  The  faid  fuit  fhall  be  cognizable  by  the  circuit  courts,  with  refpeft  to 
-^-alue,  and  to  the  party  or  parties,  or  to  the  fubject. 

2.  The  defendant  may  at  any  time  before  trial,  obtain  a  certiorari  from  the 
clerk  of  the  circuit  court  for  the  removal,  upon  filing  with  the  clerk  of  the 
circuit  court,  an  atfidavit,  that  he  believes  the  faid  fuit  to  be  of  a  nature  cog- 
nizable in  the  faid  court. 

3.  The  circuit  court  fhall,  at  the  commencement  of  every  term,dire£l:  the  fuits 
thus  removed  to  be  firfl  calkd  ;  v/hen  the  defendant  fhall  juftif)^  fuch  removal 
by  latisfa£tory  proofs,  on  the  pain  of  having  the  caufe  remitted  by  procedendo, 

4.  If  on  the  trial,  the  court  fhall  be  of  opinion,  that  the  caufe  alledgedfor 
the  removal  was  groundlefs,  the  defendant"; fhall  pay  the  coils  of  the  fuit,  let 
the  >svent  thereof  be  what  it  will. 

5.  To  prevent  removals  merely  for  the  fake  of  delay,  it  fhall  be  the  duty 
of  the  circuit  courts  to  expedite  the  trial  of  a  fuit  thus  removed,  by  the  moft 
effectual  means  confiflent  with  a  full  defence. 

6.  The  bail  given  in  a  flate  court,  fhall  (land  bound  in  the  circuit  courts. 

7.  A  plaintiff  in  a  ftate  court  may  in  like  manner,  and  under  a  like  penal- 
ty of  cofts,  obtain  a  certiorari  for  the  removal  of  a  fuit  from  a  flate  court  to 
the  circuit  court,  upon  filing  with  the  clerk  of  the  circuit  court  an  affidavit, 
as  is  above  directed  in  the  cafe  of  a  defendant ;  and  alfo  declaring  in  that  afli- 
ilavit,  that  the  caufe  alledged  for  the  removal,  did  not  exifl,  or  having  exifled, 
was  not  known  to  him  at  any  time  before  the  commencement  of  the  term  of 
the  circuit  court  next  preceding  the  application  of  the  certiorari. 

4*.     Appeals      And  be  it  further  enaded.  That  in  appeals  and  writs  of  error,  the  follow- 

and  w.iisofer-  jng  rulcs  fhall  be  obferved. 

'°'-  1.  Njo  appeal  fhall  be  granted  from  the  judgment  or  decree  of  any  court  of 

the  United  States  to  any  other  court  of  the  United  States,  unlefs  fuch  judg- 
ment or  decree  be  final,  as  aforefaid,  and  amount  to  the  value  herein  after 
expreffed  for  a  writ  of  error. 

1.  Every  appeal  fhall  be  prayed  at  the  time  of  rendering  the  judgment, 
fentence,  or  decree.:  but  in  cafes  of  admiralty  or  equity,  the  circuit  or  fu- 
preme court,  or  any  judge  thereof,  may  upon  caufe  fhewn,  direct  fuch  appeal 
in  fix  months  thereafter. 

3.  The  perfon  appealing  fhall,  by  himfelf,  or  a  refponfible  perfon  in  his 
behalf,  in  the  office  of  the  clerk  of  the  court,  from  whofe  judgment,  fentence, 
or  decree,  the  appeal  is  prayed,  give  bond  and  fufficient  fecurity,  to  be  iip- 
proved  by  the  court,  and  within  a  time  to  be  fixed  by  the  court,  to  the  ap- 
pellee for  the  due  profecution  of  his  appeal. 

4.  The  penalty  of  the  faid  bond  ihall  be  in  a  reafonable  fum,  in  the  difcre- 
tion  of  the  court. 


C        »5        ] 

5.  It  fhall  be  the  duty  of  the  appellant  to  iodge  an  authenticated  copy  of 
the  record,  before  the  expiration  of  the  fecond  term,  after  the  appeal  fhall  be 
entered,  in  the  clerk's  office  of  the  fuperior  court  ^;  or  elfe  it  fhall  Itand  dif- 
miifed,  unlefs  further  time  fhaU  be  granted  by  the  court,  before  the  end  of 
fuch  fecond  term,  for  lodging  the  fame. 

6.  The  plaintiff  in  error  ihall  affigii  errors  upon  matter  of  law  only  arifmg 
on  the  face  of  the  proceedings.  But  nothing  herein  contained  fhall  be  con- 
ftrued  to  affed  a  writ  of  error  brought  upon  the  grounds  of  a  writ  of  error 
coram  vobis.     \_Note  24.] 

7.  If  the  judgment  or  decree  be  affirmed  in  the  whole,  the  appellant  fliall 
pay  to  the  appellee  ten  per  centum  on  the  fum  due  thereby,  befides  the  cods 
on  the  original  fuit  and  appeal. 

8.  If  the  judgment  or  decree  be  reverfed  in  the  whole,  the  appellee  fliall 
pay  to  the  appellant  fuch  cods  as  the  court  in  their  difcretion  fliall  award. 

9.  Where  the  judgment  or  decree  fliall  be  reverfed  in  f>art,  and  affirmed  in 
parr,  the  cods  of  the  original  fuit  and  appeal  fliall  be  apportioned  between  the 
appellant  and  appellee,  in  the  difcretion  of  the  court. 

I  o.  The  circuit  and  fupreme  courts  fliall  in  cafe  of  a  partial  reverfal,  give 
fuch  judgment  or  decree  as  the  difl:ri(ft  or  circuit  courts,  as  the  cafe  may  be, 
ought  to  have  given. 

1 1 .  On  appeals  of  writs  or  error.  It  fliall  be  lawful  for  the  fupreme  court, 
or  the  circuit  courts  refpdively,  to  iffue  execution,  or  remit  the  caufe  to  the 
circuit  or  diftrid:  courts,  as  the  cafe  may  be,  in  order  that  execution  may  be 
there  iflued,  or  that  other  proceedings  may  be  had  thereupon. 

12.  Writs  of  error  fliall  be  iffued  ex  debito  juJiiticB  except  in  capital  offen- 
ces, provided  that  the  judgment,  exclufive  of  coils,  fliall  amount  to 
dollars,  in  a  diftrid  court,  or  dollars,  in  a  circuit  court,  or  relate   to 
a  franchife  or  freehold  of  the  value  of  dollars,  in  a  difl:ri£t  court,  or 

dollars,  in  a  circuit  court  :  and  no  writ  of  error  fliall  iffue  in  a  capi- 
tal offence  ;  nor  fliall  a  writ  of  error  be  a  fuperfedeas,  unlefs  fome  judge  of  the 
circuit  or  fupreme  courts,  as  the  cafe  may  be,  after  infpeding  a  copy  of  the 
record,  and  being  of  opinion  that  there  is  fufficient  error  therein  for  reverfing 
the  judgment  in  whole  or  in  part,  fliall  certify  the  fame  ;  in  which  cafe,  the 
clerk  ifluing  the  faid  writ,  fliall  endorfe  on  the  faid  writ  of  error,  that  it  fliall 
be  a  fuperfedeas,  and  it  fliall  be  obeyed  as  fuch  accordingly. 

13.  And  it  fliall  be  alfo  neceffary,  before  a  writ  of  error  fliall  operate  as  a 
fuperfedeas,  that  bond  vnth  fecurity  to  be  approved  by  the  clerk  of  the  court 
iffuing  the  faid' writ,  fliall  be  given  in  the  fame  manner,  under  a  like  penalty, 
and  the  plaintiff  in  error  fliall  lodge  an  authenticated  copy  of  the  record,  under 
the  fame  regulations,  and  the  parties  in  error  fliall  befubjedt  to  the  fame  judg- 
ment and  mode  of  execution,  as  is  already  direded  in  the  cafe  of  appeals. 

1  4.  A  writ  of  error  fliall  not  be  brought  after  the  expiration  of  five  years 
from  the  paffmg  of  the  judgment  complained  of :  but  where  a  perfon  thinking 
himfelf  aggrieved  by  fuch  judgment,  fliall  be  an  infant,  feme  covert,  non  com- 
pos mentis,  or  imprifoned,  when  the  fame  was  paffed,  the  time  of  fuch  difa- 
bility  fliall  be  excluded  from  the  computation  of  the  faid  five  years. 

15.  Whenfoever  the  court  before  which  an  appeal  or  writ  of  error  is  heard, 
fliall  be  divided  in  opinion  on  fuch  hearing,  the  judgment,  fentence,  or  decree, 
fliall  be  affirmed.     [Notci^.'] 

And  be  it  further  enacl:ed,That  all  the  faid  courts  of  the  United  States  fliall  4^.  Pawer?  and 
have  power  to  grant  new  trials,  according  to  the  principles  of  law  :  to  inipofe  ''"^"  o^  'he 
and  adminifl:er  all  neceflary  oaths  or  affirmations ;  to  punifli  by  fine  or  impri- 
fonment,  all  contempts    of  authority  in  any  caufe  or  examination  before  the 
fame  ;  to  eftablifli  all  neceffary  rules,  (fubjed  in  the  cafe  of  the  dlfl:rid  and  cir- 
cuit courts,  to  the  fupreme  court  as  aforefaid)  in  conformity  with  the  Confti- 


C       26      ] 

tution  and  laws  of  the  United  States :  And  that  the  proceedings  of  every  day, 
during  a  term,  fhall  be  drawn  at  full  length  by  the  clerks  of  the  feveral  courts, 
againft  the  next  fitting  thereof;  and  fuch  corrections  as  may  be  neceffary, 
being  firft  made  therein,  they  (hall  be  figned  by  the  prefiding  juflice,  or  in  the 
cafe  of  a  diftridl  court,  by  the  diftrift  judge  of  the  diftrift  :  that  when  any 
caufe  fhall  be  finally  determined,  the  clerks  of  the  feveral  courts  (hall  make  a 
complete  record  thereof:  and  that  all  writs,  precepts  and  fummonfes,  ifiuing 
from  any  court,  fhall  be  under  the  feal,  and  figned  by  the  clerk  of  the  fame, 
and  fhall  bear  tefte  in  the  name  of  the  chief  juflice  for  the  time  being. 

44.  Of  juries.      -And  be  it  further  enacted,  That  juries  fhall  be  fworn  and  impannelled  in  all 

cafes  prefcribed  by  the  Conflitution  of  the  United  States  and  the  common  law: 
that  iffues  of  fad  arifing  in  any  caufe  in  chancery,  may,  under  the  direftion 
of  the  court,  be  tried  at  the  bar  of  the  courts  of  the  United  States,  by  a  jury 
there  impannelled  :  that  in  other  cafes  of  equity,  and  in  civil  caufes  of  admi- 
ralty and  maritime  jurifdiftion,  the  court  alone  fliall  decide  :  that  juries  fhall 
be  fummoned  by  writs  of  venire  facias,  to  be  direded  to  the  marfhal  or  his 
deputy,  or  any  other  perfon  to  be  appointed  by  the  court,  in  cafe  neither  the 
faid  marfhal  nor  his  deputies  be  indifl'erent  perfons,  or  they  be  interefled  in 
the  event  of  the  caufe  :  that  challenges  fhall  be  according  to  the  courfe  of  the 
common  law :  that  the  qualifications  of  jurors  fhall  be  the  fame  as  thofe  of 
jurors  allowed  to  be  fworn  upon  queftions  of  freehold  in  the  flate  wherein  the 
court  fits  :  that  the  diflridl  and  circuit  courts,  fhall  at  every  term,  direft  the 
number  of  jurors  to  be  fummoned  for  the  fucceeding  term;  and  the  juries  for 
each  fuit  fhall  be  determined  by  ballot  :  that  when  from  any  caufe,  juries 
fhall  not  be  previoufly  fummoned,  or  being  previoufly  fummoned,  fhall  fail  to 
attend,  by-flanders  may  be  fummoned  to  complete  the  pannel,  and  the  court 
may  impofe  fuch  fine  on  every  delinquent  v^^ho  has  been  fummoned,  as  the  laws 
of  the  fiate  impofe  in  fuch  cafes  :  Provided  always,  that  in  criminal  cafes,  ju- 
ries of  the  vicinage  Ihall  be  fummoned,  according  to  the  courfe  of  the  com- 
mon law. 

That  twenty-four  freeholders  fhall  in  like  manner  be  fummoned  to  each 
term  of  a  diflrict  and  circuit  court,  to  compofe  a  grand  jury,  on  whom,  or  any 
of  whom,  failing  to  attend,  the  court  may  impofe  fuch  fine  as  the  laws  of  the 
ftate  impofe  in  fuch  cafes  ;  and  that  if  a  fufficient  number  of  thofe  fummoned 
do  not  meet,  to  compofe  a  grand  jury,  at  the  time  appointed,  or  if  having 
met,  any  of  them  fhould  abfent  himfelf  without  permiffion,  fo  as  to  leave  the 
number  too  fmall  for  a  grand  jury,  the  court  may  direft  an  adequate  number 
of  by-flanders  to  be  fummoned  to  fupply  the  places  of  the  abfent. 

That  all  jurors,  grand  or  petit,  attending  any  court  of  the  United  States, 
fliall  be  allowed  for  every  day's  attendance  thereon,  and 

for  every  twenty  miles  of  travelling,  and  their  ferriages :  that  the  allowances 
to  the  grand  jurors  fliall  be  paid  by  the  treafury  of  the  United  States  :  that  in 
the  bills  of  cod  in  every  jury-caufe,  fhall  be  taxed  and  accounted 

for  to  the  faid  treafury  ;  and  the  allowances  to  the  petit  jurors  fhall  alfo  be 
paid  by  the  faid  treafury.  And  jurors  coming  to,  attending  on,  or  returning 
from  any  court  of  the  United  States,  fhall  be  privileged  from  arrefls  in  civil 
cafes,  one  day  being  allowed  for  every  twenty  miles  from  their  places  of 
abode  ;   and  all  arrefls  contrary  hereto,  fhall  be  void. 

And  be  it  further  enabled.  That  in  all  the  courts  of  the  United  States,  the 

45.  Tellimo-  j-uigs  of  evidence,  fo  far  as  they  relate  to  competency  and  credibility,  fhall  be 

the  fame  as  at  common  law  :  that  for  good  caufe,  the  courts  of  the  United 
States,  or  any  judge,  may  grant  commiflions  for  the  examination  of  witnefies  : 
and  that  the  clerks  of  the  feveral  courts,  when  any  witnefs  fhall  be  about  ta 
depart  from  the  diflridl  in  which  a  fuit  is  to  be  tried,  or  fliall  by  age,  ficknefs, 
or  otherwife,  be  unable  to  attend  the  court ;  or  where  the  claim  or  defence  of 


C      27      ] 

any  party,  or  a  material  point  thereof,  fhall  depend  on  a  fingle  witnefs,  may 
upon  affidavit  thereof,  iffue  a  commiffion  for  taking  the  depofition  of  fuch  wit- 
nefs de  bene  elTe,  to  be  read  as  evidence  at  the  trial,  in  cafe  the  witnefs  fhall 
then  be  unable  to  attend ;  but  the  party  obtaining  fuch  commiffion,  iliall  give 
reafonable  notice  to  the  other  party,  of  the  time  and  place  of  taking  the  depo- 
fition. And  all  witneffiss  duly  fummoned  to  any  court  of  the  United  States, 
fhall  be  privileged  from  arrefls  in  civil  cafes,  while  coming  to,  attending  on, 
or  returning  from  the  fame ;  one  day  being  allowed  for  every  twenty  miles 
from  their  places  of  abode :  and  all  arrefts  contrary  hereto,  fhall  be  void. 

That  fummonfes  fhall  be  ifl'ued  by  the  refpedive  courts  for  witnefles  in  any 
fuits  depending  in  the  courts  of  the  United  States :  that  if  any  perfon,  fum- 
moned as  a  witnefs,  and  attending  the  court,  or  attending  the  commiffioners 
appointed  to  take  his  depofition,  ffiall  refufe  to  give  evidence  upon  oath  or 
affirmation,  as  the  cafe  may  be,  he  fhall  be  committed  to  prifon,  either  by  the 
court  or  the  commiffioners,  there  to  remain  until  he  ffiall  give  evidence  :  that 
any  perfon  fummoned  as  a  witnefs,  and  failing  to  attend  accordingly,  ffiall  be 
liable  to  the  action  of  the  party  injured  by  fuch  failure :  and  that  in  a  bill  of 
cofts,  the  charge  of  more  than  three  witneiTes,  for  the  proof  of  any  particular 
fiifl,  ffiall  not  be  allowed. 

And  be  it  further  enaded.  That  wherefoever  any  perfon  ffiall  be  duly  charged  45.  criimoaU. 
before  any  judge  or  juftice  of  the  United  States,  or  juflice  of  peace  of  a  ftate, 
upon  oath  or  affirmation,  with  any  crime  or  offisnce  againfl  the  United  States, 
the  puniffiment  whereof  is  fine,  imprifonment,  or  corporal  fuffering,  not  ex- 
tending to  death,  it  ffiall  be  lawful  for  the  faid  judge,  juflice,  or  juflice  of  the 
peace,  to  iffue  his  warrant,  and  demand  bail  of  fuch  perfon  for  his  appear- 
ance  at  the  next  court,  whether  a  diflrift  or  circuit  court,  to  be  held  at  the 
diflrid  for  the  United  States,  having  jurifdiclion  in  the  cafe,  or  elfe  he  ffiall  be 
committed  ;  that  upon  the  giving  of  fuch  bail,  the  recognizance  ffiall  be  forth- 
with tranfmitted  to  the  clerk  of  the  faid  court :  that  the  witneffes  ffiall  be  bound 
by  recognizance  to  appear  and  teflify  againfl  the  faid  offender,  which  fhall  be 
forthwith  tranfmitted  in  like  manner :  that  if  for  the  want  or  refufal  of  bail, 
the  faid  offender  ffiall  be  committed  to  clofe  cuflody,  and  it  ffiall  appear  that 
the  offence  is  to  be  tried  in  another  diftrid,  it  ffiall  be  the  duty  of  the  judge  of 
fuch  diflrid  in  which  he  is  confined,  to  iffue  a  warrant  to  the  marffial  thereof, 
commanding  him  to  remove  the  offender,  at  the  expence  of  the  United  States, 
to  the  diflritl  where  the  trial  is  to  be  had ;  and  that  bail  may  be  given  in  the 
cafes  aforefaid,  even  after  commitment.  That  wherefoever  any  perfon  ffiall 
be  fo  charged  as  aforefaid  with  any  crime  or  offence  againfl  the  United  States, 
the  puniffiment  whereof  is  death,  it  ffiall  be  lawful  for  the  faid  judge,  juflice, 
or  juflice  of  the  peace,  to  iffue  his  warrant  for  arrefling  him :  that  the  faid 
offender  may  at  any  time  before. trial,  be  admitted  to  bail  by  fome  juflice  of 
the  fupreme  court  or  judge  of  the  diflri£l  court  of  the  United  States,  and  by 
no  other  ;  but  the  judge  or  juflice  ffiall  not  admit  to  bail,  without  having  due 
regard  to  the  nature  and  circumflances  of  the  crime  or  offence,  and  of  the  evi- 
dence and  the  ufages  of  law  :  that  the  witneffes  ffiall  be  bound  by  recognizance 
as  aforefaid,  which  recognizance,  as  well  as  that  of  bail,  ffiall  be  tranfmitted 
as  aforefaid.  That  in  all  criminal  cafes,  not  otherwife  provided  for  by  fome 
flatute  of  the  United  States,  the  procefs  and  modes  of  proceedings  ffiall  be  the 
fame  in  the  difrrid  and  circuit  courts  refpedively,  with  thofe  obferved  in  cri- 
minal cafes  in  the  flate  included  within  the  diflrid  or  circuit ;  but  that  no  in- 
formation ffiall  be  filed,  without  the  exprefs  approbation  of  the  court,  on  good 
caufe  ffiewn  :  And  that  every  court  rendering  judgment  in  any  criminal  cafe, 
may  award  execution  thereupon. 

And  be  it  further  enaded.  That  until  it  ffiall  be  otherwife  provided  by  law,  47.  Cofit . 
the  feveral  courts  of  the  United  States  ffiall  be  the  judges  of  cofts ;  and  it  ffiall  be 

H 


C         28        ] 

/ 

difcretlonary  in  the  courts  to  divide  cofl:s  between  the  parties,  or  for  good 
caufe,  to  compel  either  party  to  pay  the  fame,  without  refped  to  the  event  of 
the  fuit  in  which  the  faid  colls  Ihall  have  arifen,  except  where  it  is  herein  be- 
fore otherwife  directed. 

48.  Ri\les  of  And  whereas  the  Conftitution  of  the  United  States,  and  the  laws  made  in 
dfcifion.         purfuance  thereof,  and  all  treaties  made  under  the  authority  of  the  United 

States,  are  the  fupreme  law  of  the  land  : 

Be  it  further  enabled,  That  the  laws  of  the  feveral  dates,  fo  far  as  the  claim 
of  a  plaintiff,  or  the  defence  of  a  defendant  may  depend  thereon,  in  refped  to 
its  merits,  evidence  or  limitation  of  time,  fhall,  fubjed  to  the  fupreme  law 
aforefaid,  be  rules  of  decifion :  that  in  all  pleadings,  except  in  Umitations  of 
time,  and  in  all  trials,  except  in  matters  of  evidence,  and  in  the  regulations  of 
the  executions  aforefaid,  fuch  ftatutes,  as  were  made  before  the  fourth  day  of 
July,  in  the  year  one  thoufand  feven  hundred  and  feventy-fix,  for  the  amend- 
ment of  the  law  in  thofe  cafes  generally,  fhall  alfo  be  rules  of  decifion :  and 
moreover,  that  the  common  law,  fo  far  as  the  fame  be  not  altered  by  the  fu- 
preme law,  by  the  laws  of  particular  ftates,  or  by  flatutes,  fhall  alfo  be  a  rule 
of  decifion.     [Note  26.] 

49.  Attomics  And  be  it  further  enafted.  That  in  all  the  courts  of  the  United  States,  the 
and  aitorncy.  parties  may  plead  and  manage  their  own  caufes  perfonally,  or  by  the  afTiftance 
genera .  ^^  ^^^^  couufel  or  attornies  at  law,  as  by  the  rules  of  the  faid  courts  refpeclively 

fhall  be  permitted  to  manage  and  condudl  caufes  therein.  And  there  fhall  be 
appointed  in  each  diflrift,  a  meet  perfon  learned  in  the  law,  to  a<5t  as  attorney 
for  the  United  States,  in  fuch  diflri6t  ;  who  fhall  be  fworn  or  affirmed  to  the 
faithful  execution  of  his  office,  whofe  duty  it  fhall  be  to  profecute  in  fuch  dif- 
trict  all  delinquents  for  crimes  and  offences  cognizable  under  the  authority  of 
the  United  States,  and  all  civil  adlions  in  which  the  United  States  fhall  be 
concerned,  except  before  the  fupreme  court  in  the  diflrift  in  which  that  court 
fl:all  be  holden.  And  he  fhall  receive  as  a  compenfation  for  his  fervices  fuch 
fees  as  fhall  be  taxed  therefor  in  the  refpettive  courts  before  which  the  fuits  or 
profecutions  fhall  be.  And  there  fhall  alfo  be  appointed  a  meet  perfon,  learned 
in  the  law,  to  a6t  as  attorney-general  for  the  United  States,  who  fliall  be  fworn 
or  affirmed  to  a  faithful  execution  of  his  office,  whofe  duty  it  fhall  be  to  profe- 
cute and  conduft  all  fuits  in  the  fupreme  court  in  which  the  United  States 
(hall  be  concerned,  and  to  give  his  advice  and  opinion  upon  queftions  of  law, 
when  required  by  the  Prefident  of  the  United  States,  or  when  requefled  by 
the  heads  of  any  of  the  departments,  touching  any  matters  that  may  concern 
their  departments,  and  fhall  receive  fuch  compenfation  for  his  fervices  as  fhall 
by  law  be  provided. 

50.  Repealing      And  be  it  further  enadled.  That  all  a6ls  or  parts  of  afts  of  the  United  States, 
ciaufe.  coming  within  the  purview  of  this  adl,  fhalUbe,  and  the  fame  are  hereby  re- 
pealed ;  faving  and  confirming,  however,  all  things  under   the  faid  a£ls  or 
parts  of  a6ts  already  done,  or  which  may  be  done  before  the  commencement 
of  this  aft. 

51.  Com-  And  be  it  further  enafted.  That  this  act  fhall  commence  and  be  in  force  on 

mencemcm.       ^}^g  day  of 


THIRD        PART. 

NOTES. 

ft. IT  TAD  it  been  pvaElicable^  the  laros  refpe&ing  the  judiciary  of  the  United  States,  would  have 
X.  JL  been  declared  to  operate  in  fntes  hereafter  admitted  into  the  Union,  without  the  formality 
of  ajpecial  aB.  But  it  was  not  attempted  j  hecaufe  it  cannot  be  now  forefen  at  what  time  or  place 
the  diJlriB,  court  of  the  new  Jlate  ought  to  meet  ;  to  what  circuit  it  Jhall  be  attached  ;  at  what 
time  or  place  the  circuit  court  Jhall  be  held  within  it  j  nor  what  Jalary  will  be  commenfurate  with  tlie 
labours  of  the  judge. 

(2.)  The  fialed  fejjions  are  reduced  from  four  to  two,  partly  to  accommodate  the  difiriEl  judges, 
under  the  propofed  augmentation  of  their  trouble.  It  is  probable  that  two  of  thefe  fejfions  will  exhaujl 
the  civil  bufinefsfor  a  long  time,  if  not  forever  ;  efpecially  when  we  combine  the  kindred  jurifdiflion  of 
the  circuit  courts.  With  regard  to  offences  cognizable  in  the  diftriEl  courts,  moft  of  them  will  be  pro- 
fecuted  without  an  arrejl  before  judgment  f  except  on  non-appearance  after  fummons J  or  will  be  bailable 
with  cafes.     Hence  would  any  poffible  procraflination  be  light  in  the  fcaU. 

To  thofe  who  are  acquainted  with  judicial  proceedings,  it  is  almoft  needlefs  to  obferve,  that  it  con- 
tributes to  regularity,  the  convenience  offuitors,  andperhapsfairnefs,  to  limit  the  continuance  of feffions. 

(3.)  It  may  feemfuperfluous  even  to  hint  to  courts,  that  public  tourt-houfes,  where  attainable,  ought 
to  be  their  forum.  That  every  confidence  may  be  fafely  repofed  in  the  judges,  is  a  fa£l  undeniable  at 
the  prefent  day.  But  in  a  judiciary  Jy fern,  which  looks  beyond  the  exiflence  of  thofe  whofc  integrity 
ts  nowjufily  revered,  the  eye  of  the  world  ought  to  be  one  of  the  centinels  ofjuflice. 

Emergencies  which  may  compel  the  removal  of  courts  from  fxed  places  of  feffion,  a'^e  familiar  to  our 
memory.  A  writ  of  adjournment  is  the  inflrument  of  removal  in  the  country  from  which  we  borroxa 
mofl  of  our  jurifprudence.  Here  the  power  of  adjourning  is  divided  between  the  prefident  and  the. 
courts  ;  the  prefident  may  order  it  in  vacation,  when  the  courts  cannot  affemblefor  the  purpofe  ;  and 
the  courts  themfelves  may  adjourn,  when  the  exigency  breaks  forth  during  their  feffion. 

(4.)  Some  exclufions  of  theflate  fourts  are  delineated  in  the  original  law.  It  is  an  honorable  evi- 
dence of  candor  explicitly  to  announce  the  rights  of  the  federal  judiciary.  Diffenfions,  if  not  crufhed  in 
the  beginning,  will  be  more  quickly  terminated  byfuch  a  meafure.  For  by  afcertaining  the  ultimatum 
of  thofe  exclufions,  and  of  the  federal  jurifdiBion,  every  contefl  of  this  kind  may  be  brought  to  an  im- 
mediate tefl. 

(5.)  According  to  the  law  of  nations,  the  diplomatic  reprefentatives  of  fovereigns  cannot  befued  in 
the  courts  of  a  foreign  potentate  ;  but  confids,  except  when  they  are  fheltered  from  their  junfdiCtion  by 
aBual  convention,  poffefs  nofuch  immunity. 

(6.)  How,  it  may  be  afked,  can  any  debt,  having  a  federal  quality,  but  below  a  particular  fum,  be 
banifhed  from  the  federal  jurif diction  ? — The  following  reply  is  ojfered  : 

1.  The  Conflitution  has  undertaken  to  defcribe  only  the  kind  of  perfonsand  things  which fhould  have 
accefs  to  the  federal  courts,  not  to  eflimate  the  value  in  debate. 

2.  Thefupremz  court,  though  inherent  in  the  Conflitution,  was  to  receive  itsfrft  motion  from  Con- 
grefs  J  the  inferior  courts  mujl  have  Jlept forever,  without  the  pleafure  of  Congrefs.  Can  the  fp here 
of  authority  over  value  be  more  enlarged  ? 

3.  Without  this  conflruElion,  courts  mufi  be  ordained  for  the  recovery  of  every  trifling  fum,  which 
the  unavoidable  expences  attending  it,  might  exceed  tenfold.  This  therefore,  never  could  have  been  in- 
tended by  the  Federal  Convention. 

Farther  j  without  a  claufe  againfl  abfent  debtors,  great  injuftice  may  be  done  to  refdent  citizens. 
Under  the  name  of  abfent  debtors  are  included,  as  well  thofe  who  have  never  been  inhabitants  of  the 
United  States,  as  thofe  who,  having  been  inhabitants,  expatriate  themfelves  or  abandon  a  flate.  An 
equal  partition  of  the  debtor's  property  among  his  creditors,  being  more  equitable,  than  that  any  one 
fhould  feize  the  whole,  a  common  attachment  is  not  recommended.  But  Congrefs  will  perceive  that  this 
fubjeEl  muft  remain  mutilated,  until  they  eflablifh,  if  not  uniform  laws  of  bankruptcy  throughout  the 
United  States,  at  leafi  an  aEl  of  infolvency. 

(7.)  It  is  the  direElfenfe  of  the  Conflitution,  that  there  fhould  be  a  chancery.  A  proper  plan  then 
mufi  be  devifedfor  it.  That  upon  which  mofl  of  theflates  have  praElifed  for  years,  and  whofe  theory 
wants  no  explanation,  challenges  our  acceptance.  If  it  were  ever  liable  to  the  imputation  of  having 
ufurpedonthe  common  law,  its  effeEls  are  now  very  falutary ,  and  itfelf  a  friendly  auxiliary  to  the 
common  law.  Upon  thefe  ideas,  the  federal  jurifdiBion  in  equity  is  moulded.  Indeed,  unlefs  the  leni- 
ent properties  of  equity  were  to  be  lodged  by  lawfome  where,  the  courts  of  common  law  would  be  con- 
tinually inventing  fubtleties  or  fBions  by  which  to  engrofs  them. 

(8.)  This  claufe  will  debar  the  diJiriEl  court  from  interfering  with  the  judgments  at  law  in  theflate 
courts.  For  if  the  plaintiff  and  defendant  rely  upon  theflate  courts,  as  far  as  the  judgment,  they 
ought  to  continue  there  as  they  have  begun.  It  is  enough  tofplit  the  famefuit  into  one  at  law,  and 
another  inequity,  without  adding  a  further  feparation,,  by  throwing  the  common  law  fide  of  the  quefli- 
on  into  thejtate  courts,  and  the  equity  Jide  into  the  federal  courts. 


C      30      ] 

(g.)  This  reJlriEli»n  affumes  for  its  foundation,  that  cafts  ariftng  under  the.  Confiitution,  laws  and 
treaties  of  the  United  States,  between  any  perfons  or  bodies  whatfoever,  not  fpecially  protected  by  the 
law  of  nations,  are  not  without  the  reach  of  the  judiciary  power  of  the  United  States.  For  the  fubfe- 
quent  defcriptions  of  perfons,  and  bodies,  fpread,inflead  of  contradling  the  jurifdiElion.  But  the  dig- 
nity of  the  United  States,  and  of  a  particular  fiate,  ought  to  exempt  themfrom  the  cognizance  of  afn- 
gle  judge.  But,  can  the  United  States,  or  a  particular  fiate,  be  defendant  ?  To  be  a  party,  as  is  the 
phrafe  of  the  Conftitution,  is  to  be  a  plaintiff  or  defendant.  Do  the  rights  of  fovereignty  forbid  tht 
latter  ?  They  do  not,  where  thefovereign  becomes  defendant  with  his  own  confent.  The  Confiitution 
isfuch  an  ad  of  confent,  done  by  the  United  States  and  the  individual  ftates  ;  unlefs  it  be  interpreted^ 
that  the  individual  flates  may  be  a  party  now,  only  as  they  were  before,  to  wit,  asfovereigns,  and  that 
the  United  States  Jhould  be  on  the  fame  footings  To  this  may  be  oppofed  the  facility  with  which  the 
Confiitution  might  havefuppreffed  any  ambiguity,  by  ufing  the  word  ^'•plaintiff,"  infiead  of '-'■  party  :" 
the  propriety  of  informing  public  bodies,  that  though  they  are  political  agents,  they  are  not  abfulved 
from  moral  obligation  ;  and  the  licence  which  is fomjetimes  given  by  a  fovereign,  to  fcrutinize  his  pre- 
tentions before  his  own  courts.  But  the  fiumbling  block  is,  that  neither  t  he  United  States  nor  the  in- 
dividual ftates,  can  be  compelled  to  be  jufi,  if  inclined  to  be  obflinate  in  injuflice.  Let  it  rather  be  be- 
lieved, that  a  judgment  paffed  againfi  them  by  a  conftitutional  tribunal,  would  be  unre.luElantly  obeyed. 
If,  in  defiance  of  its  duty,  as  a  member  of  the  Union,  afiatefhould  refvfe  compliance,  the  general  go- 
vernment  will  doubtlefs  add  its  earnefi  remonfirances.  What  remedy  lies  beyond  thefe  bounds,  is  afe- 
rious  intricacy.  But  without  an  effectual  one,  the  Confiitution  would  be  unnerved,  where  it  ought  to 
beftrong. 

If  in  legal  analogy  an  execution  were  to  be  fought,  a  difiringas  corref ponds  more  aptly  than  any 
other,  if  as  a  difiringas  would  operate  upon  public  property,  in  which  every  individual  has  an  in- 
terefl,  it  were  better  immediately  to  apply  to  individuals  pro  rata,  the  colleElion  may  be  made  in  the  ufu- 
al  form.  It  is  the  province  of  policy,  however,  to  difcern  the  delicate  path  ;  and  as  fuch,  it  is  left 
zoithout  other  remarks  to  the  Houfe. 

( 10.)  This  clo-ufefuppofes  that  the  diflriB,  courts  will  hold  their flatedfejfions  at  the  fame  place  with 
the  circuit  courts  :  That  a  criminal  may  be  tried  by  thefirft  diflri£l  court  which  fits,  if  he  defires  it, 
unlefs  a  bill  fhall  have  been  found,  or  an  arraignment  made,  or  fome  fimilar  flep  taken  in,  the  circuit 
court.  The  difcretion  with  which  the  attorney  of  the  diftri(l  is  indulged,  is  not  ?nore  than  is  due  to  his 
office.  He  will  naturally  aim  at  the  highefl  fatisfaUion  for  the  violated  laws  of  the  United  States,, 
which  the  tefUmony  will,  in  his  opinion  permit,  and  will  therefore  indiSl,  when  neceffary  in  the  circuit 
court.     And  the  cafes  themfelves,  thus  undefined,  will  not  often,  if  ever,  be  of  a  very  atrocious  caff. 

(11.)    The  following  are  examples  of  the  cafes  in  No.  7,  8,  and  9. 

An  action  of  affault  and  battery  fhall  not  be  brought  againfi  an  inhabitant  of  Pennfylvania,  in  any- 
difirid  court  but  that  of  Pennfylvania,  unlefs,  iSc. 

An  aBion  on  a  bond  given  by  an  inhabitant  of  Pennfylvania  to  another  perfon,  fhall  not  be  brought 
in  the  diftrid.  court  of  Pennfylvania,  although  it  may  have  been  affigned  to  another  inhabitant  ef 
Pennfylvania,  except,  &c. 

A  defendant  Jhall  not  be  arrefied  orfummoned  in  Pennfylvania,  in  afuit  to  be  tried  in  the  difiriEl 
court  ofNew-Jerfiy,  except  in  the  next  example. 

An  inhabitant  of  Pennfylvania  conneEled  in  inter  eft  with  an  inhabitant  of  New- Jerfey ,  may  with  re- 
fped  to  that  interefl,  befued  in  Jerfey. 

(12.)  Afpedalfeffion  mufl  generally  be  held  for  admiralty  cafes  and  feizures,  becaufe  they  fpring 
up  very  irregularly,  and  will  not  fuffer  delay  ;  they  are  alfo  of  confiderabU  length,  and  would  difiurlf 
the  whole  circle  of  bufnefs,  unlefs  interdided  to  be  tried  then. 

(13,)    With  this  power  every  jufiice  of  the  peace  is  clothed,  as  a  guardian  of  the  public  quiet, 

(14.)  The  viijbehaviour  of  the  deputies  may  befo  grofs,  as  to  fiifle  every  tendernefs  for  the  charaBtr 
of  the  officer  ;  andjherefore  the  judge  is  armed  with  authority  to  flop  his  improper  career, 

(15.)  The  perfonai  liberty  of  a  citizen  is  ajubjecl  of  prenous  mcment  J  and  as  in  government  un- 
jufily  to  abridge  it,  wonld  be  denominated  tyranny,  fo  not  to  urefifrom  individuals  an  opportunity  of 
cramping  it,  where  a  veto  can  be  impofed  by  law,  would  be  almofi  a  traiterous  negled.  With  this 
view,  bail  has  been  thus  regulated.  If  every  plaintiff  inay  exact  bail,  it  will  be  exaBed  in  all  cafes. 
If  no  plaintiff  may,  or  if  a  judge  is  fir  ft  to  be  petitioned,  jufiice  will  be  eluded  in  many.  There  is  then 
•no  choice,  but  to  vefi  the  clerk  with  difcretionary  powers  on  this  head  (which  would  be  unufual,  and 
perhaps  unfafe)  or  to  prefcribefovie  rules  like  the  foregoing. 

(16.)  Thefe  four  forms  of  execution  are  intimately  known  to  every  lawyer  in  the  United  States,  be- 
ing among  the  elements  of  his  fience,  and  having  their  effence  fettled  by  adjudications.  Perhaps  at  a 
day  not  far  remote,  it  may  be  thought  an  acceffon  to  freedom  and  to  commerce,  to  emancipate  the  perfon 
of  a  debtor  from  the  grafp  of  his  ireditor,  and  to  fubfiitute  lands  under  due  caution,  againfi  frauds 
and  oppreffions,  for  the  payment  of  debts  accruing  after  a  certain  time.  The  refpite  of  execution  is  to 
afford  an  opportunity  to  obtain  a  writ  of  error,  or  indeed  an  appeal. 

(17.)  The  requiftiion  that  the  decree  or  judgment  fiiall  be  final,  will  abolifh  a  variety  of  appeals  or 
•writs  of  error  oh  the  fame  fubjeB.  For  if  every  interlocutory  matter  would  bear  an  appeal  or  writ  of 
trror,  afuit  would  not  be  finijhed  in  an  age.  Befides,  a  miftake  in  one  part  of  a  caufe  is  frequently 
reBified  in  another.  Nay,  the  party  whom  the  mifiake  has  prejudiced,  may  j^ ill  be  viBortous  at  lajl. 
Nor  will  the  dif contented  party  be  difabledfrom  reaping  the  fame  advantages  after  final  judgment,  as 
before. 

Let  it  be  here  remarked,  that  appeals  and  writs  of  error  have  fame  different  confequences  :  Appeals 
arrefiing  the  judgment  immediately,  and  writs  of  error  after  fame  ddays  and  formalities.   Appeals  are 


C        3'        ] 

allowed  only  in  admiralty  and  revenue  and  equity  caufes.  In  them,  Hit  merits  are  exhibited  intire  to 
to  the  revifionary  tribunal.  But,  the  real  merits  have  mojl  frequently  been  decided  againji  the  plain- 
tiff in  error.  Hejlies  to  the  higher  court  with  the  fails  of  the  cafe  found  againfl  him,  and  without  a 
chance  ef  having  them  re-examined,  unlefs  on  the  face  of  the  proceedings  a  capital  blunder  appears. 
The  appellant  and  plaintiff  in  error,  therefore,  fiand  not  on  the  fame  line  of  favor. 

The  mode  of  giving  tejtimony  in  equity,  is  by  depofitions  :  It  is  alfo  praHifed  in  (he  admiralty^  to 
examine  witneffes  viva  voce,  and  commit  their  evidence  to  writing.  In  our  inter courfe  with  foreign 
nations,  an  expofition  of  the  conduB,  of  our  admiralty,  may  be  frequently  decent  and  vfeful.  Perhaps 
therefore,  the  original  law  is  exceptionable  in  allowing  tl  judge,  whofe  opinion  is  to  be  canvaffed,  the 
privilege  of  placing  the  caufe  in  any  attitude  which  fquares  beft  with  that  opinion. 

(18.)  This  power  is  granted  in  behalf  of  perfons  confined  onfufpicion  of  crimes.  The  circuit  courts 
may  of  their  own  motion,  have  a  gaol  delivery  earlier  than  the  returns  of  the  flated  fejions,  or  thefa- 
preme  court  may  command  it,fhould  they  be  urged  by  any  imminent  circumjlance. 

(ig.)  On  thefuppofition,  that  the  incrcafed  compenfation  to  the  difiriA  judges  would  be  a  per  diem 
allowance  according  to  their  attendance,  the  f  am  would  not  be  an  obflacle  of  confequence ;  and  the  admi- 
ralty bufinefs  originating  while  they  arefrcm  home,  may  befo  adjufled  by  their  own  regulations,  as  not 
tofuffer  by  their  ahfence. 

(20.)  The  United  States  are  permitted  to  befued  in  a  circuit  court,  while  particular  ^ates  are  fua- 
ble  only  in  the  fupreme  court.  This  difference  is  made,  becaufe  the  Conftitution  demonftrales  a  peculiar 
care  offuits  againft  aftate,  by  giving  original  jurifdiElion  in  them  to  the  fupreme  court.  Confuls  and 
vice-confuls ,  being  coupled  wxthfiates,  in  this  particular  ought  alfo  to  be  confined  to  the  fupreme  court, 
were  it  not  for  the  inconvenience  offuch  inflitution. 

(21.)  Clerks  and  marfhals  are  indifpenfable  and  confidential  ojicers.  They  ought  to  have  talents^ 
and  emoluments  equal  to  a  livelihood.  Their  pofls  now  produce  mere  trifles.  But  being  bound  to  be 
always  in  the  way,  and  at  call,  they  are  precluded Jrom  any  gainful  employment  at  a  diftance  abroad. 
The  allowances  which  the  circuit  courts  would  make  to  them,  zcould  be  abundantly  replaced  by  the  public 
fhart  of  fines  and  forfeitures.  But  this  fund  was  not  defignated,  hecaufext  refis  the  renumeration  of 
public  fervants  upon  the  delinquencies  of  its  citizens.  Additional  duties  may  from  time  to  time  be  thrown 
upon  them,  which  will  balance  this  flipend. 

(22.)  The  jurifdiB.ion  of  the  fupreme  court  is  expreffed  nearly  in  the  words  of  the  Conftitution.  It 
was  wifhed,  that  where  the  United  States  were  fued,  the  caufe  could  be  confined  to  the  fupreme  court,  as 
is  the  cafe  with  a  particular  fi ate.  But  it  is  doubtful  whether  this,  being  one  of  the  infiances  in  which 
the  fupreme  court  is  declared  to  have  appellate  jurifdiciion,  it  can  have  original jurifdichon  alfo  under 
the  words  of  the  Confiitution. 

The  formation  of  writs  is  a  branch  of  judicial  duty.  Rales  of  praEUce  belong  to  the  authority  of 
every  court,  and  their  other  incidental  powers  add  to  that  authority.  The  tranfition  from  theft  to  the 
Juperintending  of  the  whole  courfe  of  proceedings,  will  not  therefore  be  confidered  as  too  great.  But  it 
is  advifablt,  that  every  fyftem  of  praElice  throughout  theflates  fhould  be  confulied,  in  order  that  the 
general  proceeding  fhould  be  accommodated  to  the  habits  of  the  different  fates,  as  nearly  as  inay  be. 
The  judges  of  the  fupreme  court  have  already  hadfomc  experience  on  this  head,  and  can  therefore  better 
execute  the  work,  than  any  other  perfons.  It  would  not  be  difficult  for  aii  individual  to  offer  afcheme 
apparently  good.  But  he  would  probably  feel  too  great  a  bias  to  the  practice  to  which  he  had  been  ac- 
cuflomed  j  and  the  Houfe  would  alfo  be  under  fome  perplexity  how  to  reconcile  the  ufages  of  the  fates. 

(23.)  Bail  is  not  needful,  except  in  cafes  of  original  jurisdiction.  Of  the fe,  the  number  inthefu- 
freme  court  is  fmall,  and  they  willfcarcely  ever  be  of  fuch  vehemence,  as  that  the  pofponemeat  of  a 
quefiion  of  bail,  until  the  court  can  be  moved,  fiould  be  injurious. 

(24.)  The  plaintiff  in  error,  is  limited  to  errors  in  law.  This  is  agreeable  to  the  practice  which 
Jiasfo  much  influence  on  our  judicial  proceedings.  For  after  a  jury  has  pronoun' ed  thefaHs  in  iffue, 
and  a  new  trial  has  either  not  beenfolicited,  or  has  been  rejeEted,  on  the  principles  of  the  common  law, 
no  court  or  jury  ought  to  agitate  the  fame  facts,  unlefs  the  judgment  ffould  be  reverfed  by  a  fupenor 
court.  On  the  other  hand,  in  equity  and  admiralty  cafes,  every  faEi  as  has  been  already  obferved,  is  be- 
fore thefuperior  court  in  the  fame  manner,  as  it  was  before  the  inferior,  and  may  therefore  befubmitted 
with  propriety  to  thefuperior  court. 

NewfaEls,  and  new  proofs  on  appeals,  are  here  difcarded,  on  account  of  the  nuinberlfs  frauds  which 
viay  be  covered  under  the  ad-miffion  of  them. 

(25.)  Upon  an  equal  divifion  of  an  appellate  court,  it  is  prefumable,  that  the  inferior  court  was 
right.  Without  this  rule,  an  appeal  cr  writ  of  error  may  be  hung  up  in  the  fupreme  court  for  many 
years. 

(26.)  The  Confiitution,  laws  and  treaties  of  the  United  States,  are  the  fuprevie  law;  that  is,  they 
will  controul  on  federal  fubjeEls,  every  other  law. 

They  will  particularly  controul  the  laws  of  the  fever  al  fates  :  whether  confifiing  of  their  own  origi- 
nal legislation,  the  common  law,  or  the  ftatute  law,  exprefsly  or  tacitly  adcypted. 

Such  is  the  extent  of  mere  power.  But  it  may  be  affirmed,  that  it  will  not  be  exercifcd,  becaufe  it 
ought  not,  where  the  the  claim  of  a  plaintiff,  or  the  defence  of  a  defendant,  rcfs  upon  a  valid  law  of  a 
Jlate. 

This  may  happen — 1.  In  perfonal  rights  ;  2.  Rights  of  property  :  3.  Torts;  and  4.  Sometimes 
even  in  offences,  upon  the  jnerits,  the  evidence,  or  a  limitation  of  time. 

But  beftdes  thefe,  are  three  other  points,  not  tin&ured  by  the  particular  cafes,  but  governed  only  by 
the  clafs  of  aElions,  to  which  the  individual  cafe  belongs  :  pleadings,  with  the  exception  of  limitation  ; 
trial,  with  the  exception  of  evidence  ;  and  executions. 

I  . 


C        3^        ] 

The  common  law  is  confejfedly  incompetent  on  the/e  topics.  The  alternative  then  is,  between  thejiate 
laws,  and  thejlatutcs. 

The  latter  have  the  advantage  in  uniformity,  which  the  judiciary  of  the  United  Stales  ought  to  cul- 
tivate ;  and  without  it,  a  citizen  who  is  a  debtor  in  onefiate,  may,  although  a  creditor  to  an  equal 
amount  in  another,  pojfibly  be  ruined. 

Butfome  cafes  will  not  be  influenced  by  fiate  laws  ;  to  wit,  thofe  of  a  foreign  and  tranfitory  nature, 
cs  a  bond  executed  in  Europe.  Thefupreme  law  may  alfo  be  fiknt.  The  lex  loci  will  then  be  admit- 
ted in  its  cufiomary  degree  ;  and  where  it  ends,  the  common  law  and  flatutes  aforefaid  will  enter  into 
the  queflion. 

But  the  Attorney-General  conftders  thefe  expedients  as  merely  temporary  ;  beraufe  he  trufls,  that  the 
neceffity  of  a  federal  code  is  tooflriking  to  efcape  the  attention  of  the  Houfe.  That  it  muft  be  a  work 
of  time  and  dijiculty,  is  an  exhortation  immediately  to  commence  it. 

Uponfo  grand  an  undertaking,  the  pra^ice  of  nations  has  been  variant  j  fome  having  direEled  the 

materials  of  a  code  to  be  reported  in  the  firfi  inflance,  and  others  a  complete  digefl.     As  too  much  lei- 

fure  andrefleElion  cannot  be  beflowed  onfuch-acompofition,  the  former  mode  is  preferable  :  efp'ecially 

fince  the  freedom  of  correBing  the  matter,  may  be  fettered  by  thefolemnity  of  a  law,   when  conneBed 

with  a  great  whole. 

Biit  arduous  as  this  effort  mufl  be,  it  is  not  boundlefs.  It  would  probubly  be  pointed  to  thefollow' 
ing  leading  obje&s  :  i.  The  provifions  which  already  exiji  by  the  Conjtitution  and  the  federal  laws  : 
2.  Such  laws  as  may  fiill  be  neceffary  for  the  further  execution  of  the  Conflitution,  and  the  completion 
of  federal  policy  :  3.  The  common  law,  and  flatutes  :  And  4.  The  law's  of  the  feveral  flates,as  involved 
in  queflions  arifing  therein. 

Thefe  preliminaries  having  obtained  thefanHion  of  Congrefs,  the  reducing  of  them  into  laws  will  be- 
come more  eafy  and  accurate. 


PRINTED    BY    FRANCIS    CHILDS    AND    JOHN    SWA.INB. 


This  is  an  exact  photographic  facsimile  of  the  FIRST  REPORT 
OF  THE  ATTORNF.Y  GENERAL  OF  THE  UNITED 
STATES,  and  was  printed  at  Philadelphia  by  Francis  Childs 
and  John  Swaine  in  1791    (Evans  23909) . 

We  wish  to  acknowledge  the  cooperation  of  the  American  Anti- 
quarian Society  in  lending  us  the  original  from  which  this 
reprint  was  prepared. 

Of  this  edition  295  numbered  copies  have  been  printed  by  The 
Luther  M.  Cornwall  Company  of  New  York  City. 


This  is  copy  number 


D     000  015  588     7 


